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Desiree Capuano & James Pendleton
250 E. Placita Lago Del Mago
Sahuarita, AZ     85629
Tel: 520-288-8200
desiree.capuano@gmail.com
japendletonjr@gmail.com

R. v. Patrick Fox - Trial Transcripts

Highlighting Legend
Perjurious testimony which defense counsel (Tony Lagemaat) and Crown Counsel (Mark Myhre) knew of
Critical statements - e.g. inciminating admissions
Statements of interest - e.g. testimony which Lagemaat should have known to pursue further or cross examine on, but didn't
Click on any highlighted text to display the associated comments/annotations.
27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)
Vancouver, B.C.
June 15, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
COPY
BAN ON PUBLICATION - INHERENT JURISDICTION
J.C. WordAssist Ltd. (Vancouver)
Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2
Phone 604-669-6550
27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)
Vancouver, B.C.
June 15, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
COPY
BAN ON PUBLICATION - INHERENT JURISDICTION
  • Crown Counsel:M. Myhre
  • Appearing on his own behalf:P. Fox
  • Defence Counsel:A.J. Lagemaat
    M. Chatha, A/S
J.C. WordAssist Ltd. (Vancouver)
Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2
Phone 604-669-6550

INDEX

WITNESSES FOR THE CROWN:

  • DESIREE CAPUANO1
    • CROSS-EXAMINATION BY MR. LAGEMAAT, Continuing:1
    • CROSS-EXAMINATION BY MR. LAGEMAAT, Continuing:19
    • CROSS-EXAMINATION BY MR. LAGEMAAT, Continuing:40
    • CROSS-EXAMINATION BY MR. LAGEMAAT, Continuing:45
    • RE-EXAMINATION BY MR. MYHRE:51

EXHIBITS

  • EXHIBIT 3: Printout of email chain from Patrick Fox to Desiree Capuano dated 01/14/2015, subject line "Your loving home and parental teaching and guidance"54
  • EXHIBIT 4: Printout of email from Desiree Capuano to Patrick Fox dated 04/20/2015, subject line "{G*****} summer visitation 2015"54
  • EXHIBIT 5: Document titled "Desiree Capuano" containing printout of emails55

RULINGS

  • Nil
Proceedings

Vancouver, B.C.
June 15, 2017

(EXCERPT FROM PROCEEDINGS)
(JURY OUT)
DESIREE CAPUANO
a witness called for the
Crown, continuing.

THE CLERK: In the Supreme Court of British Columbia, at Vancouver, this 15th day of June, 2017, recalling the matter of Her Majesty the Queen against Patrick Henry Fox, My Lady.
MR. MYHRE: We're ready, My Lady.
THE COURT: All right. Can we have the jury, please.
DESIREE CAPUANO
a witness called for the
Crown, recalled, warned.
THE CLERK: I remind you, Ms. Capuano, that you're still under affirmation.
AYes, ma'am.
(JURY IN)
MR. LAGEMAAT: I'll be referring now to -- and I'm sure we've all lost track of what page we're on in the book, and I don't have page numbers, so it's called -- the email chain is called "Re G. summer visit 2015". I believe it's 13 pages in from the back. And this was also a fairly lengthy chain, seven pages. So if we could number the pages 1 to 7, please.
THE CLERK: Sorry, where is it starting?
MR. LAGEMAAT: It's starting on --
THE COURT: Can I show you, Madam Registrar?
MR. LAGEMAAT: Yes, "Re summer visit".
THE COURT: It's this one. It's this one, and that would be page 1.
THE CLERK: And seven in you wanted it?
THE COURT: You said seven?
MR. LAGEMAAT: Yes. Yes, My Lady, seven pages.
CROSS-EXAMINATION BY MR. LAGEMAAT, CONTINUING:
QAnd again, this -- this email chain was referred to in my -- in the Crown's book of exhibits, and we're going to go a little bit further in time in the chain. And I'll direct you to page 3 of 7 at the bottom. And what -- Ms. Capuano, you can confirm for me, this -- this email chain is largely about confirming a trial itinerary for -- and this is what you characterized in direct evidence, defining the term "itinerary", and you're basically arguing back and forth about itinerary for {G*****} going to visit Patrick; is that correct?
AYes.
QIn this chain. Hence the title.
So going a little bit further than we went in direct, and I'll go to the bottom of page 3, Desiree Capuano wrote, April 26th -- I'm assuming May 4th -- you've copy and pasted into there where you have previously asked him for an itinerary; is that correct, Ms. Capuano?
AYes.
QOkay. And then you've put in a dictionary definition, turning the page to page 4 of 7 at the top. It's a continuation of that email. And you've put in a dictionary definition of "full" and "all" --
AYes.
Q-- correct? And again, that -- you didn't think he -- you understood he knows what "full" and "all" means; correct?
AWell, according to this conversation back and forth, I was just trying to get him to see that what I wanted was the travel plans for my son.
QI suggest you were just doing what you've done in previous emails and just arguing.
AI had full control over visitation and determining that visitation. Lagemaat should have crossed Capuano on this. She is now, finally admitting that she had complete control over visitation - which completely contradicts all of her testimony about having to maintain communication, under court order, and to provide "reasonable right of visitation". After the website went up, the attacks, the reference to shooting, I was still offering to send {G*****} to him. Lagemaat should have crossed Capuano on her choice of wording here. By saying she was still "offering" to send {G*****}, shows that what she's really interested in is control. As long as she has complete control she's alright with allowing visits, but as soon as Patrick doesn't do exactly what she wants then she will refuse visitation. All I wanted were travel plans. And the fact that it took two weeks to get a plane ticket was very frustrating. I tried many different ways to tell him what I wanted were travel plans.
QDo you know why it took two weeks?
ABecause he kept saying that what I was asking for he didn't understand, although I referred to it in the same way he had referred to it in previous emails. Lagemaat should have confronted her with the emails from that thread, from 2015-04-20 through 2015-05-06 to show that Patrick repeatedly asked her to be more specific about what level of detail she wanted and the scope of the itinerary (because "itinerary" can be very broad). And that, finally, on 2015-05-06 she stated she just wanted the flight information. He should have asked her why she didn't just state that from the beginning.
The reason Patrick was insisting on clarity from Capuano was because he has had so many problems in the past with her being overly vague, then later using that vagueness to change plans or requirements. The fact that she adamantly refused to clarify just made her actions that much more suspicious.
Capuano said that she was using "itinerary" in the same way Patrick had in previous emails, however when Patrick used it it was specifically in the context of flight information so it was limited in scope to the flights. When Capuano used it she did not limit the scope. Moreover, she said she required the itinerary for the "entire trip", which suggested a much larger scope.
This would have been significant to show the jury because the Crown and Capuano had presented these emails as Patrick being the one being difficult and confrontational, but in reality there was no reason Capuano couldn't have just said she only required the flight information.
Lagemaat also should have pointed out that Capuano insisted on having the "itinerary" BEFORE she would "approve" it. That meant Patrick had to buy the tickets before he even knew whether she would approve it. That was another reason Patrick wanted her to be clear and specific in what she was demanding.
QGoing over to page 2 of 7, and about halfway up the page, on Thursday, May 7th, 2015, Desiree Capuano wrote -- and can you read -- and you wrote two in a row again here. Can you read those in, please? It starts with "Would you like me to forward". Is that your reply, Ms. Capuano?
AYes. 2019-01-29 Affidavit of Patrick Fox, paragraph 6
Capuano falsely testified she wrote specific emails, upon which the allegations are based, but the emails were actually written by a third party.
  • TR 2017-06-14 p18/5-6
  • TR 2017-06-14 p23/26-28
  • TR 2017-06-14 p26/19-20
  • TR 2017-06-14 p29/23-24
  • TR 2017-06-14 p30/46-47
  • TR 2017-06-14 p31/43-45
  • TR 2017-06-14 p32/28-30
  • TR 2017-06-14 p34/26-27, p34/33
  • TR 2017-06-14 p34/44-45
  • TR 2017-06-14 p35/33-35
  • TR 2017-06-14 p38/14-16
  • TR 2017-06-14 p40/14-16
  • TR 2017-06-14 p43/29-31
  • TR 2017-06-14 p44/24-27
  • TR 2017-06-14 p44/35-38
  • TR 2017-06-14 p47/39-41
  • TR 2017-06-14 p63/42-45
  • TR 2017-06-15 p2/47 - p3/1
  • TR 2017-06-15 p4/5-6
In addition to the above emails in which Mr. Lagemaat directly and explicitly asked Capuano whether she wrote them and she explicitly and directly testified she did, in the following instances, Mr. Lagemaat either failed to directly ask Capuano whether she wrote the emails in question or he asked her and she failed to directly state she did write them. Nevertheless, Capuano's implication was that she had written the emails in question.
  • TR 2017-06-14 p18/34-37 (re l41-45)
  • TR 2017-06-14 p19/5-7 (re l10-15)
  • TR 2017-06-14 p21/8-11 (re l14-28)
  • TR 2017-06-14 p37/18-23 (re l28 - p38 l12)
  • TR 2017-06-14 p62/33-36 (re l39-46)
Patrick told Mr. Lagemaat, prior to trial, that certain email conversations which the Crown was relying on were not actually composed by Capuano. Mr. Lagemaat replied he was aware of that; that it was obvious to him by the differences in writing style, grammar, vocabulary, brevity.
Near the end of Mr. Lagemaat's cross examination, Mr. Lagemaat told Patrick Mr. Myhre had told him that before the start of the trial Capuano had told Mr. Myhre that she did not write some of the emails in the Crown's book of evidence which purported to be from her.
By Mr. Lagemaat's and Mr. Myhre's own admissions they knew Capuano did not write certain specific emails which both Mr. Lagemaat and Mr. Myhre had offered into evidence as being emails written by Capuano. Neither Mr. Lagemaat nor Mr. Myhre took steps to prevent Capuano from committing perjury by testifying that she wrote the emails; nor did they notify the court or the jury that they had reason to believe Capuano was committing perjury.
When Mr. Myhre first questioned Capuano about the email thread with the subject “{G*****}'s summer visitation 2015” he asked her whether she “participated in” the email string, rather than asking her whether she wrote any of the specific emails in the thread or whether Patrick's responses were to emails actually written by her. I believe Mr. Myhre phrased the question in that way because he knew most of the emails had not been written by Capuano.
QOkay. Could you read those both in, please? There's two in a row.
A[As read in]:
Would you like me to forward you the email thread where I purchased a ticket and it interferes with your work schedule so you denied it? Or the one where I told you the flights were cheaper on a different day and you responded that you didn't care about my financial troubles and it wasn't your fault that I was a white trash person incapable of budgeting my money, and again denied it? Oh, but you probably have them up on your website, so you can just go read it there. Actually, you interfered with almost every visitation I have with {G*****}, from pulling stupid things like refusing to put him on a plane, calling the airlines and changing the plane tickets yourself, filing for a restraining order the day prior to visitation, sending him for a week with nothing but the clothes on his back and a box of Jewish crackers. You and he decided that he would not participate in any event over Christmas break, including eating dinner, because he was Jewish and it was against his religion. You sure as hell never permitted me to have him for a visitation without return plans solidified. I believe I have been extremely accommodating to you, given the hardships you caused me while you had partial custody. Where's your argument again?
QWhy did you ask at the end, "Where's your argument again?" Is that asking him for a reply?
ABecause he's telling me in his -- that he's not agreeing to the terms of visitation, meaning that he was requiring that I drive two hours during the work week from Tucson to Phoenix to put him on a plane, and he didn't care that I had to work. 2019-01-29 Affidavit of Patrick Fox, paragraph 45
Capuano falsely testified she believed Patrick's emails showed he was “requiring she drive two hours during the work week from Tucson to Phoenix to put {G*****} on a plane” for his visit with Patrick.
However, Capuano wasn't even living in Tucson at that point. She was still living in South Phoenix, near the airport. And even if she were to now claim that she had already moved to Tucson prior to that point, the fact remains there was no mention of her moving to Tucson until Patrick brought it up, after {G*****} was already in Vancouver - at which point Capuano admitted to moving while {G*****} was with Patrick.
Moreover, Capuano testified that she continued to work at Apollo after moving to Tucson, and that she commuted from Tucson to Phoenix for work - which would mean she was making the two hour drive on the weekdays anyway, and that by scheduling the flight on a weekend, as she was requesting, would have required her to make an otherwise unnecessary trip to Phoenix, which would have been much less convenient for her. And, if Capuano had actually moved from Phoenix to Tucson prior to {G*****}'s flight then why wouldn't she have simply suggested Patrick get him a flight from Tucson to Vancouver, rather than from Phoenix to Vancouver?
Moreover, if Capuano had actually already moved from Phoenix to Tucson prior to Patrick making {G*****}'s travel arrangements, then it is clear from their emails around that time that she was very deliberately withholding that information from Patrick and he had no way of knowing she had moved to another city. Therefore, how could Capuano possibly hold Patrick responsible for requiring she drive two hours from Tucson to Phoenix if she was deliberately misleading him to believe she was still living in Phoenix?
Also, in the email conversation in question, Patrick repeatedly insisted Capuano did not have to transport {G*****} to the airport personally. He repeatedly stated he would arrange for a car (e.g. a taxi) to pick {G*****} up. Capuano consistently ignored that proposal, as though Patrick had never stated it - but it's very clearly stated in the email conversation.
Both Mr. Lagemaat and Mr. Myhre were very familiar with the email conversation in question. In fact, it is included in part, in both parties’ books of exhibits. They must have known that either Capuano had not yet moved to Tucson, or had moved to Tucson but had expressly withheld that information from Patrick. But either way, they must have known that her testimony that Patrick was requiring her to drive two hours during the work week from Tucson to Phoenix was perjurious because either she wasn't living in Tucson or she hadn't informed Patrick she had moved to Tucson. However, both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QDid you know if he was working at this time?
AI don't know. I assume so.
QGoing over to page 1 of 7, and about halfway up the page, May 11th, 2015 -- and again, this is again May 11, Desiree Capuano wrote [as read in]:
See, Richard, it doesn't matter.
Is that your response, Ms. Capuano?
AYes. 2019-01-29 Affidavit of Patrick Fox, paragraph 6
Capuano falsely testified she wrote specific emails, upon which the allegations are based, but the emails were actually written by a third party.
  • TR 2017-06-14 p18/5-6
  • TR 2017-06-14 p23/26-28
  • TR 2017-06-14 p26/19-20
  • TR 2017-06-14 p29/23-24
  • TR 2017-06-14 p30/46-47
  • TR 2017-06-14 p31/43-45
  • TR 2017-06-14 p32/28-30
  • TR 2017-06-14 p34/26-27, p34/33
  • TR 2017-06-14 p34/44-45
  • TR 2017-06-14 p35/33-35
  • TR 2017-06-14 p38/14-16
  • TR 2017-06-14 p40/14-16
  • TR 2017-06-14 p43/29-31
  • TR 2017-06-14 p44/24-27
  • TR 2017-06-14 p44/35-38
  • TR 2017-06-14 p47/39-41
  • TR 2017-06-14 p63/42-45
  • TR 2017-06-15 p2/47 - p3/1
  • TR 2017-06-15 p4/5-6
In addition to the above emails in which Mr. Lagemaat directly and explicitly asked Capuano whether she wrote them and she explicitly and directly testified she did, in the following instances, Mr. Lagemaat either failed to directly ask Capuano whether she wrote the emails in question or he asked her and she failed to directly state she did write them. Nevertheless, Capuano's implication was that she had written the emails in question.
  • TR 2017-06-14 p18/34-37 (re l41-45)
  • TR 2017-06-14 p19/5-7 (re l10-15)
  • TR 2017-06-14 p21/8-11 (re l14-28)
  • TR 2017-06-14 p37/18-23 (re l28 - p38 l12)
  • TR 2017-06-14 p62/33-36 (re l39-46)
Patrick told Mr. Lagemaat, prior to trial, that certain email conversations which the Crown was relying on were not actually composed by Capuano. Mr. Lagemaat replied he was aware of that; that it was obvious to him by the differences in writing style, grammar, vocabulary, brevity.
Near the end of Mr. Lagemaat's cross examination, Mr. Lagemaat told Patrick Mr. Myhre had told him that before the start of the trial Capuano had told Mr. Myhre that she did not write some of the emails in the Crown's book of evidence which purported to be from her.
By Mr. Lagemaat's and Mr. Myhre's own admissions they knew Capuano did not write certain specific emails which both Mr. Lagemaat and Mr. Myhre had offered into evidence as being emails written by Capuano. Neither Mr. Lagemaat nor Mr. Myhre took steps to prevent Capuano from committing perjury by testifying that she wrote the emails; nor did they notify the court or the jury that they had reason to believe Capuano was committing perjury.
When Mr. Myhre first questioned Capuano about the email thread with the subject “{G*****}'s summer visitation 2015” he asked her whether she “participated in” the email string, rather than asking her whether she wrote any of the specific emails in the thread or whether Patrick's responses were to emails actually written by her. I believe Mr. Myhre phrased the question in that way because he knew most of the emails had not been written by Capuano.
QCould you read that in, please?
A
See, Richard, it doesn't matter what I say or how I say it. You're bound and determined to argue everything I say and you adamantly refuse to even attempt to understand what I'm talking about. So tell me why I should try to defend myself against a person like that. It's a futile effort and I have better things to do. You nitpick like a little old lady. Oh, my God, are you going to say that I'm racist against little old ladies?
QAnd up at the top of the page, "and you're incapable", is that your reply, Ms. Capuano?
AYes.
QCan you read that in, please?
A
And you're incapable of having a conversation without a dictionary, encyclopedia, or case law book for reference.
QAnd this, again, was at a time when you say you were in fear of Mr. Fox?
AYes, and I still had to determine visitation for my child.
QPardon --
AWas still required to put him on a plane to go see his father. So no matter how scared I was, I still had to communicate with him. 2019-01-29 Affidavit of Patrick Fox, paragraph 4
Capuano falsely testified, repeatedly, she continued to engage Patrick in communication and to allow their son, {G*****}, to visit Patrick in Vancouver because she was required to under order of the family court.
  • TR 2017-06-13 p35/33-35
  • TR 2017-06-13 p60/30-33
  • TR 2017-06-14 p3/11-13
  • TR 2017-06-14 p38/32-36
  • TR 2017-06-15 p4/31-36, p4/40-42
  • TR 2017-06-15 p6/5-9
  • TR 2017-06-15 p33/43-44
  • TR 2017-06-15 p34/27-29
  • TR 2017-06-15 p34/41-44
However, Capuano admitted in her testimony, she “had full control over visitation and determining that visitation”.
  • TR 2017-06-15 p2/29-30
The minute entries from the July 2014 family court hearing show Patrick voluntarily waived all parental rights, and Capuano was, therefore, no longer required to allow ANY visitation or communication between Patrick and {G*****}.
After admitting she had “full control over visitation” Capuano continued to testify she was required, under court order, to communicate with Patrick and to allow {G*****} to visit him.
Patrick had discussed Capuano's false claims that she was required, under court order, to communicate with him and to allow {G*****} to visit him, with both Mr. Lagemaat and Mr. Myhre prior to trial because Capuano had also falsely stated such in her RCMP interviews. Also, Capuano stated in her RCMP interviews that Patrick had waived all parental rights in the family court order in July 2014, giving her sole authority in all matters pertaining to {G*****} from that point forward. Therefore, Mr. Lagemaat and Mr. Myhre knew, at the time of Capuano's testimony, that her repeated claim of being required, under court order, to communicate with Patrick and to allow {G*****} to visit was false.
Mr. Lagemaat failed or refused to confront or to cross examine Capuano with the proof that her testimony was false. Both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QWell, if he didn't send a ticket --
AThen he wasn't getting on the plane.
QExactly.
AYeah. And then he would take me back to court and say that I prevented visitation. I knew what I was facing. 2019-01-29 Affidavit of Patrick Fox, paragraph 4
Capuano falsely testified, repeatedly, she continued to engage Patrick in communication and to allow their son, {G*****}, to visit Patrick in Vancouver because she was required to under order of the family court.
  • TR 2017-06-13 p35/33-35
  • TR 2017-06-13 p60/30-33
  • TR 2017-06-14 p3/11-13
  • TR 2017-06-14 p38/32-36
  • TR 2017-06-15 p4/31-36, p4/40-42
  • TR 2017-06-15 p6/5-9
  • TR 2017-06-15 p33/43-44
  • TR 2017-06-15 p34/27-29
  • TR 2017-06-15 p34/41-44
However, Capuano admitted in her testimony, she “had full control over visitation and determining that visitation”.
  • TR 2017-06-15 p2/29-30
The minute entries from the July 2014 family court hearing show Patrick voluntarily waived all parental rights, and Capuano was, therefore, no longer required to allow ANY visitation or communication between Patrick and {G*****}.
After admitting she had “full control over visitation” Capuano continued to testify she was required, under court order, to communicate with Patrick and to allow {G*****} to visit him.
Patrick had discussed Capuano's false claims that she was required, under court order, to communicate with him and to allow {G*****} to visit him, with both Mr. Lagemaat and Mr. Myhre prior to trial because Capuano had also falsely stated such in her RCMP interviews. Also, Capuano stated in her RCMP interviews that Patrick had waived all parental rights in the family court order in July 2014, giving her sole authority in all matters pertaining to {G*****} from that point forward. Therefore, Mr. Lagemaat and Mr. Myhre knew, at the time of Capuano's testimony, that her repeated claim of being required, under court order, to communicate with Patrick and to allow {G*****} to visit was false.
Mr. Lagemaat failed or refused to confront or to cross examine Capuano with the proof that her testimony was false. Both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QDid you have to go out of your way that far to get him to send you the plane tickets --
AYes.
Q-- compared -- compared to just leaving it?
AYes. The only time I got him to send me the plane ticket is when I said, "'Stupid fucking cunt' does not look like an itinerary. Send me the itinerary." Lagemaat should have crossed Capuano on whether Patrick finally provided the flight information because of what she said, or because she finally stated completely and clearly what she was demanding.
In her email dated 2015-05-06 1:56:20 pm PST, Capuano finally stated she only "needed" the flight information - which is completely contrary to her earlier demand for the "full itinerary". And up to that point Capuano refused to clarify or narrow the scope of what she meant by "itinerary". Lagemaat should have pointed out that at any time in that email thread she could have simply told Patrick she just required the "flight itinerary". He should have pointed out that SHE was the one who refused to cooperate, not Patrick.
QI -- I suggest, Ms. Capuano, this is just like every other email we went through where it came a point where you did not have to engage but you did. And in this case there's one instance again where you send two in a row.
AIn 2014, the beginning of 2014 when the website went up, I was not responding. It was not till the end of 2014 that I started going back and forth with him on 2019-01-29 Affidavit of Patrick Fox, paragraph 22
Capuano falsely testified there were durations of time when she had ignored Patrick's emails and didn't respond.
  • TR 2017-06-13 p7/41-43
  • TR 2017-06-14 p49/14-23
  • TR 2017-06-14 p63/16-21
  • TR 2017-06-14 p64/17-22
  • TR 2017-06-14 p64/27-29
  • TR 2017-06-15 p5/9-12
  • TR 2017-06-15 p5/41-47
  • TR 2017-06-15 p6/24
However, the email history and, in particular, the main email page of the website (included at Tab 8 of the Crown's book of exhibits) show there was never a period when Capuano ignored Patrick's emails and didn't respond.
In March and April 2014 Capuano did not respond to Patrick's emails but, by her own admission in her testimony, it was not because she was “ignoring” them or “trying a different tactic”, it was because she had just discovered Patrick had published all of her emails and she “did not want to give him anything else that he could use against her.”
  • TR 2017-06-12 p29/35-41
I believe that would seem to be an acknowledgment by Capuano that her conduct in her emails was inappropriate and offensive.
[indiscernible], as you said yesterday, bickering back and forth, trading witty remarks.
In the fall of 2014 -- in the winter, actually, in December, is when one of those two parties brought up shooting the other one. I don't care what reference is around that, I don't care how many times he tells me not to be threatened, the person doing the attacking is the person saying that they think about shooting the other person. At that point every other threat has a different meaning, everything else becomes important. Lagemaat should have pursued this further. Patrick never said he "thought about shooting Capuano" - that is her, adding more to the facts than what was real. Lagemaat should have asked her where and when Patrick ever said anything about "thinking about shooting her". She would have referred to the email from 2015-01-11. Then Lagemaat should have reviewed the email with her and pointed out that, if anything, it was {G*****} who had thought about shooting her - not Patrick.
Lagemaat also should have asked her if she believes that simply making a reference to the existence of something, or to an event which occurred is the same as making a threat. If she said yes, then he should have asked her if telling some one you have a car is the same as telling them you intend to run them over. The point of this would have been to show the jury that Capuano's claims of fearing Patrick owning guns was irrational - just because a person has the means or the capability of harming another person doesn't mean they are likely to do so.
That doesn't mean that I'm going to stop interacting with him the way that I had been. I'm not going to cower and cry and beg and plead for him to stop.
QSo instead of --
AI'm just going to continue in the same thing that I had been.
QWould --
AAnd in the background I'm going to take steps to protect myself and my family.
QWhich is insulting him, provoking him, insulting his family.
AI'm just trading back and forth the way that I had been before he said he was going to shoot me.
QExactly. You're trading back and forth.
ABut that doesn't mean I'm not taking steps on my own to also protect myself and my family.
QAnd -- and you said yesterday, I -- I asked you several times, "Why didn't you just stop?" and you gave a period of years where you had just not replied and it hadn't -- it kept on going. What were those years again where you said? And I have it in my notes. I'm wondering if you recall.
AIt was between 2012, 2013, and beginning of 2014. 2019-01-29 Affidavit of Patrick Fox, paragraph 22
Capuano falsely testified there were durations of time when she had ignored Patrick's emails and didn't respond.
  • TR 2017-06-13 p7/41-43
  • TR 2017-06-14 p49/14-23
  • TR 2017-06-14 p63/16-21
  • TR 2017-06-14 p64/17-22
  • TR 2017-06-14 p64/27-29
  • TR 2017-06-15 p5/9-12
  • TR 2017-06-15 p5/41-47
  • TR 2017-06-15 p6/24
However, the email history and, in particular, the main email page of the website (included at Tab 8 of the Crown's book of exhibits) show there was never a period when Capuano ignored Patrick's emails and didn't respond.
In March and April 2014 Capuano did not respond to Patrick's emails but, by her own admission in her testimony, it was not because she was “ignoring” them or “trying a different tactic”, it was because she had just discovered Patrick had published all of her emails and she “did not want to give him anything else that he could use against her.”
  • TR 2017-06-12 p29/35-41
I believe that would seem to be an acknowledgment by Capuano that her conduct in her emails was inappropriate and offensive.
Most of the responses, if I had responses, were very civilized in my attempt to be civilized and respectful.
QSo you were responding. You said yesterday --
ATo some -- I had to.
QOkay.
AWe had a child. We were in a custody battle.
QAnd --
AThere was no choice of me not responding to it. 2019-01-29 Affidavit of Patrick Fox, paragraph 4
Capuano falsely testified, repeatedly, she continued to engage Patrick in communication and to allow their son, {G*****}, to visit Patrick in Vancouver because she was required to under order of the family court.
  • TR 2017-06-13 p35/33-35
  • TR 2017-06-13 p60/30-33
  • TR 2017-06-14 p3/11-13
  • TR 2017-06-14 p38/32-36
  • TR 2017-06-15 p4/31-36, p4/40-42
  • TR 2017-06-15 p6/5-9
  • TR 2017-06-15 p33/43-44
  • TR 2017-06-15 p34/27-29
  • TR 2017-06-15 p34/41-44
However, Capuano admitted in her testimony, she “had full control over visitation and determining that visitation”.
  • TR 2017-06-15 p2/29-30
The minute entries from the July 2014 family court hearing show Patrick voluntarily waived all parental rights, and Capuano was, therefore, no longer required to allow ANY visitation or communication between Patrick and {G*****}.
After admitting she had “full control over visitation” Capuano continued to testify she was required, under court order, to communicate with Patrick and to allow {G*****} to visit him.
Patrick had discussed Capuano's false claims that she was required, under court order, to communicate with him and to allow {G*****} to visit him, with both Mr. Lagemaat and Mr. Myhre prior to trial because Capuano had also falsely stated such in her RCMP interviews. Also, Capuano stated in her RCMP interviews that Patrick had waived all parental rights in the family court order in July 2014, giving her sole authority in all matters pertaining to {G*****} from that point forward. Therefore, Mr. Lagemaat and Mr. Myhre knew, at the time of Capuano's testimony, that her repeated claim of being required, under court order, to communicate with Patrick and to allow {G*****} to visit was false.
Mr. Lagemaat failed or refused to confront or to cross examine Capuano with the proof that her testimony was false. Both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QAnd would it be a correct characterization to say that communications during that time were more limited to the family court issues about --
AAbsolutely.
Q-- about visitation, about what went back and forth with the child?
AFrom my respect, yes.
QMm-hmm.
ABut that doesn't mean that his insults were not there.
QWas there -- was there insults and threats during that period?
AAbsolutely.
QThank you.
AYes, there were, and I did not respond to them. 2019-01-29 Affidavit of Patrick Fox, paragraph 46
Capuano falsely testified that from 2012 through early 2014 Patrick had threatened her repeatedly.
However, the emails and Capuano's own admissions in the Sahuarita Police reports, the Phoenix Police report, the order of protection hearing and declaration, and the RCMP reports from April through July 2015, show that Patrick had never, not once, threatened Capuano with anything other than what he had every legal right to do (e.g. pursuing legal action).
And, I believe it is critical to this point, that a threat to engage in some perfectly legal course of action against the other party, for example, seeking redress in civil or family court, is not “threatening conduct” as envisioned by the criminal harassment laws.
Both Mr. Lagemaat and Mr. Myhre were well aware of the emails and the numerous police reports, court documents, and hearings in which Capuano admitted Patrick had never threatened her with anything other than legal action and to publicly expose what he considered to be her offensive conduct - both of which are perfectly legal courses of action. Therefore, both Mr. Lagemaat and Mr. Myhre knew at the time of Capuano's testimony that her statement was false. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QNext email in the chain is titled "Values" and this was again May 11th, 2015. Do you -- do you have any idea what it was about May 11th that you --
AYes. We were getting ready for visitation travel.
QOkay. This is a two-page chain. At the bottom, the last email, Patrick writes to you [as read in]:
Desiree, I believe this epitomizes the difference between you and I. In December 2013, G. gave me a coffee mug that he picked up at the airport on the way here. I've since used that mug every day, every single time I have coffee at home, which is at least once a day.
And did you reply to that email?
AYes.
QAnd that's your reply above, that May 11th at 10:50?
AYes.
QAnd can you read that in?
A[As read in]:
You would not have the opportunity --
QNo, sorry, Ms. Capuano --
AOh.
Are you saying that {G*****} being in this world means nothing?
QSorry, Ms. Capuano, it's -- it starts with "Ha". It's -- I'm on the second page --
AOh.
Q-- of that chain. I apologize. Second page.
A
Ha! I picked out your precious coffee mug that you use every day. Guess it's time to trash it now, huh?
QSo you got -- you took it upon yourself to point out that it wasn't actually from {G*****}, it was -- you picked it out?
AI picked it out and bought it.
QRight. And -- and why did you feel it's necessary to point that out to Mr. Fox, to hurt him?
AThere's information that he doesn't have, because he assumes that he knows everything that's going on at all times, and he doesn't.
QSo you -- you felt it necessary to point that out to show him he's wrong or to hurt him?
AWell, he's saying that I have no values and don't respect anything that {G*****} gives me.
QSo yet --
ASo now he's saying that in comparison, he respects everything {G*****} gives him, but he didn't -- {G*****} didn't buy that or pick it out, I did.
QBut -- but in his email he's saying how special it is to him, he uses it every day, but you took it upon yourself -- you had to point out, "He didn't pick it out, I did. Ha!"
AWhy did he have to point out that I don't cherish the things that my son gives me?
QWhy start with "ha" exclamation mark?
ABecause it was ridiculous.
QAnd then above that, he asks you, and I'll only read in the last paragraph, it's again arguing -- sniping back and forth [as read in]:
Can you list one thing you're [sic] done in your life to make the world a better place, either directly or indirectly?
Turning over to page 1 of 2, and -- and you say, this -- at May 11th at 11:08, at the very bottom, did you write that about the maple coffee?
AYeah.
QAnd can you read that in, please?
A[As read in]:
I finished the maple coffee he bought me. You don't have any facts at all.
QAnd then two minutes later, above, again you sent two in a row, these aren't replies anymore -- did you write that email at 11:10, "Can you list"? Is that your --
AYes.
QCan you read that, please, Ms. Capuano?
A
Can you list one thing you've done in your life to make the world a better place, either directly or indirectly? Yes, I gave birth to your son. Bam, that just happened.
QWhat do you mean by "Bam, that just happened"?
AIt's proof that I've done something.
QIsn't it proof that you've just won a little bit of an argument?
ANo, it's proof that I've done something good in my life.
QSo "that just happened" means that you gave birth.
AThat -- no, it means that I came up with something that I've done.
QSo you've won a little piece of this argument; correct? You're saying, "Bam, that just happened. I've won this little piece of this argument."
ASure.
QThank you.
AYou're welcome.
QI suggest again that all these emails are a game, little pieces of winning and losing for both of you, back and forth. And in some cases such as this again, you don't even wait for a reply, you send another one with a "bam" at the end.
AThere's no game, but there is a game plan. And if there's any prize, it's my freedom. Lagemaat should have pursued this further. Capuano is being melodramatic. He should have asked her what she meant by "the prize is her freedom". Was Patrick in some way enslaving her? Keeping her from going about her business? Was Patrick preventing her from doing anything? He should have asked her, if everything on the website is true then isn't she really being harmed by her own actions. And if anything on the website is false then point it out.
Capuano would have been unable to point out anything false on the website. Or, if she claimed anything specific was false then Mr. Lagemaat could have confronted her with the proof that it wasn't.
QNext email, "Carrington College", and it's a two- page chain. And at the bottom, June 7th -- or 27th, 2015, Patrick wrote [as read in]:
Oh, I see now. So Paulo [phonetic] was -- is having serious financial problems and doing yet more layoffs. Is that what happened? Were you let go?
And he's talking about your position and potentially some problems at your employer. Would you agree that's the content of that email from him, the subject matter?
AThat he's trying to get information about where I work? Yes.
QMm-hmm. And then what did you reply at 8:17 p.m.? And it's just above there, Ms. Capuano.
A
My job is none of your business.
QAnd then he replies again, insulting. And then you ask him a question up above, Desiree Capuano wrote. It says:
May you please confirm ...
Is that -- you sent that email, Ms. Capuano?
AYes.
QCould you read that in, please?
A
May you please confirm which facility you are working at?
And I give him two addresses.
QYou -- you give two addresses.
AYes.
QAnd then up above, he replies:
I shall verify that. Thank you.
And he --
AActually, I wrote that.
QHe -- oh, sorry, you wrote that. He says:
Jacobson Way.
So he confirms where he's employed.
AYes.
QWhy is it your job is none of his business but then you go on to ask him where his job is?
AI want him to understand that it can work both ways. He's already contacted my employer. He already sent emails pretending to be me. He already created a LinkedIn account, he already created a Facebook account, he already said that he's going to destroy me, he already said he's going to do all of these things. I want him to know that there are risks to him too.
QYou want him to know that you can do the same thing. You're threatening here that you can do the same thing; correct?
ABut I never did it. That's the difference.
QWell, it doesn't matter. You're threatening that you can do it and he's giving you the information you need to do it --
AYes.
Q-- correct? Thank you.
AYes.
QPage -- next email chain. This is "G.'s adventure with the RCMP". And at the bottom, he sends you an email on June 30th, 2015, and I'm assuming there's been some kind of discussion about -- I'll go look back. I'm assuming there's been some kind of discussion about the authorities being called and he's saying about you making a frivolous claim. Is that Child Protection Services or --
AIt's not. I just asked for a home check.
QPardon me?
AI asked for a home check. 2019-01-29 Affidavit of Patrick Fox, paragraph 47
Capuano falsely testified when she contacted the RCMP on 2015-06-30 she had only “asked for a home check”.
However, the RCMP report shows Capuano had actually, falsely told them she “hadn't heard from {G*****} since he'd been in Vancouver”, and that “when she attempted to contact {G*****}'s father, Richard Riess, she received responses from a man named Patrick Fox stating Riess does not exist, that {G*****} is with Fox and would be back in Arizona when he (Fox) 'said so’.” Capuano deliberately misled the RCMP to believe Patrick Fox and Richard Riess were two different people; that she didn't know who Patrick Fox was; and that her 14 year old son was with a strange man in a foreign country (RCMP report #2015-29196).
Confronting Capuano on this would have been an excellent opportunity to show the jury that Capuano will make up outrageous lies, even to law enforcement, to get people to do what she wants and to abuse the justice system for her own pointless, petty purposes.
Both Mr. Lagemaat and Mr. Myhre knew of the RCMP report which was on the website and also included in the Crown's disclosure material. Therefore, they must have known Capuano was lying when she testified. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was lying in her testimony.
QOkay. And then your reply, up above, at 8:46 p.m., June 30th [as read in]:
Richard, when you said ...
Is that your reply?
AYes.
QCould you read that in, please?
A
When you said, or would that have been too complicated for you to think of? I believe you meant to use the word "to". You really should use a dictionary. That sort of poor grammar, common against [sic] the lower echelon of society, makes it difficult for you -- to take you seriously. Not that anyone does anyway. As you well know, {G*****}'s phone does not receive calls while in Canada. Again, nice try. I chose not only to pursue a wellness check this time and, as such, no frivolous claim exists. To the contrary, I actually had a very nice chat with the RCMP and they indicated that they would be keeping an eye on you. I thanked them for checking in on {G*****} for me. Have a nice day.
QThe second paragraph [as read in]:
I believe you meant to use the word "to". You really should use a dictionary. That sort of poor grammar, common amongst the lowest echelon of society, makes it difficult to take you seriously.
So again you're -- you're insulting his grammar skills?
AHe had no ID that said he was Richard Riess. My son is in a foreign country and he just told me he's not going to get a return ticket.
QThat's not what I asked you, Ms. Capuano.
AAnd I'm --
QI asked you --
A-- being punished because I said a frivolous sentence, and that that gives him permission to do this, and that I'm saying it's okay because I insulted his use of the word "to". Are you saying that it's okay that he's done all of this? Lagemaat should have crossed Capuano on what difference Patrick's name made. She had full control over visitation and she had sole legal and physical custody. She could have permitted {G*****} to travel anywhere in the world and stay with any person while he was there. She claims that {G*****} was only allowed to be with his "father" whose name was "Richard Riess" but that's nonsense - that's a restriction she alone was imposing. She also claims that if Patrick attempted to abscond with {G*****} there would be nothing she could do because Patrick didn't have any ID that stated he was Richard Riess, but that's also nonsense because all she would have to do is inform the police that his legal name, at least according to his ID, is Patrick Fox.
This could have shown the jury that Capuano was being irrational and melodramatic.
Also, Patrick never told Capuano he wasn't going to get a return ticket for {G*****} - that's an assumption/inference she made.
QWell, if you're so afraid and threatened and harassed, why do you have to harass --
ABecause I need my son back and I'm not going to back down.
QAnd the last sentence:
Not that anyone does anyways.
And reading back, you're saying his grammar "makes it difficult to take you seriously. Not that anyone does anyways." I suggest you don't take this seriously, do you?
AOh, I absolutely do.
QIt doesn't seem to me you do. When you reply with all these insults, it doesn't appear you do.
AAll we're doing is looking at emails back and forth. That does not take into account the other activities that are happening.
QWell, the --
AThey were a lot of other things happening at --
Q-- the -- the email --
A-- this time besides emails.
QSorry, I apologize. Finish.
AThe emails were just a front. That's all they are. It's just a front.
QThe -- the emails are also the -- the entire relationship between you two is in the emails. There's -- you've said there was only three phone conversations. This is the relationship between the two of you, this is what we have.
AThere's also actions.
QMoving on to the Crown's book of exhibits, Tab 3, the photo section. And we'll go to the second page, "Photo album, Desiree Capuano".
You said in direct evidence there was a photo of you on the website in your underwear.
ANo, he said that.
QSo there is no photo of you in your underwear on the website.
AIt's me in my bathrobe. I'm --
QOr your bathrobe.
A-- pretty sure that's what he's referring to.
QAnd would that be --
AFourth page --
Q-- the red plaid bathrobe?
A-- fifth row down --
QYes.
A-- right-hand side. I didn't say that, he said that.
QSo there's nothing racy or unusual about that photo. You're fully dressed, you're fully garbed; correct?
AHe's the one that said it, not me. His direct quote was something along the lines of, "How does it feel knowing everybody in work has seen you in your underwear?"
QGo back to -- or further in, "Photo album, {S***** C*****}". And the second page, five rows down, is that Mr. Lauchner [phonetic] --
AYes. It's --
Q-- with {S*****}?
A-- a BB gun.
QIt's a BB gun.
AIt's just a BB gun. It's not real.
QHow old was {S*****} at the time?
ASeven; six, seven.
QA BB gun is a real gun, it's just not a firearm.
ACorrect.
QCorrect. One -- one thing about these photos, and perhaps you can explain this -- you work in IT; correct?
AYes.
QYou said you didn't post these pictures on your Facebook; Facebook allowed, I'm assuming your friends, because it -- you allege it was through G.'s Facebook account, that Facebook allowed your friends into your photo album?
AThere's a -- there was a camera roll option in the pictures in Facebook. 2019-01-29 Affidavit of Patrick Fox, paragraph 50
Capuano falsely testified Patrick surreptitiously, without her knowledge or consent, took her private and personal photographs.
Capuano testified she had not “posted them to Facebook” and “they were just in the camera roll”.
  • TR 2017-06-13 p16/24-25
However, Facebook does not have a “camera roll” feature - that is a feature of Apple iCloud and Apple devices, which have absolutely nothing to do with Facebook. Nor does Facebook have a feature comparable to Apple's camera roll. Nevertheless, based on Capuano's testimony, she is saying she believed Patrick used {G*****}'s Facebook account, which she claims she believed was actually maintained by {G*****}, not by Patrick, even though Patrick had repeatedly informed her he was maintaining that account, to access pictures from her Facebook profile which were not publicly accessible. Capuano is claiming the photos were only accessible to her “trusted” Facebook friends - of which, Patrick was not one.
However, Capuano's earlier testimony that originally ALL of her Facebook data was public and that at some point after the website was created she made it non-public (in February 2016) contradicts that.
  • TR 2017-06-15 p13/30-32, 39-40
Mr. Lagemaat and Mr. Myhre were both present for all of Capuano's testimony. So they both must have heard her contradictory statements. Moreover, Capuano's false statements about Facebook's “camera roll” feature are easily proven by the simple fact that such a feature simply does not exist. Therefore, Mr. Lagemaat and Mr. Myhre both must have known that Capuano was perjuring herself when she testified. However, both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano had committed perjury.
QSo you selected that camera roll option, so people who were -- who could have access to your Facebook page could have access to your entire camera roll?
AYes. They were people that I knew, family. 2019-01-29 Affidavit of Patrick Fox, paragraph 48
Capuano falsely testified that Facebook had something called a “camera roll” option, which gave her “friends” access to the photos she posted to her Facebook profile.
However, there is no such thing as a “camera roll” option in Facebook. Apple iCloud and Apple devices have something called a camera roll but that is completely different and separate from Facebook, which is where Capuano testified Patrick surreptitiously obtained the photos from without her knowledge or consent.
The proof of this matter was self-evident. The fact that Capuano was referring to something which does not exist should have been sufficient proof for both Mr. Lagemaat and Mr. Myhre to know she was lying. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QAnd this at a time when you were concerned about your information being made public, you shared your camera roll on Facebook?
ANo, I'd already blocked it, but he had gotten these before I put up the privacy.
QWell, I'm saying there was a time when it was all public.
AThere was, yes. Lagemaat should have pursued this further because it contradicts what she testified to in direct. Previously she testified that Patrick surreptitiously took the data from her Facebook profile using {G*****}'s account (that account being a "friend" of hers). I didn't realize that somebody was going to go in there and try to take everything out of there and use it against me.
QSo you're saying --
AI just assumed that it was to be -- be a normal Facebook account.
QBut you're saying you were very concerned about --
AIt was in 2014 that I blocked it. As soon as he put this stuff up on the website. 2019-01-29 Affidavit of Patrick Fox, paragraph 49
Capuano falsely testified that she made her Facebook data non-public in 2014, as soon as she learned Patrick had created the website.
However, it was actually in February 2016, a couple of days after the CBC story aired/ran, that Capuano made her Facebook data non-public. Patrick had made the copy of her public profile, which he put on the website, a few days before the CBC story was released.
The timestamps of some of the content in the copy Patrick had put on the website prove the copy was generated in February 2016, which means as of that point, the content on Capuano's profile must have still been publicly accessible. Patrick had explained this to both Mr. Lagemaat and Mr. Myhre, and he had directed them to the copy of Capuano's Facebook profile which he had put on the website. Therefore, both Mr. Lagemaat and Mr. Myhre must have known Capuano was lying when she testified. However, neither Mr. Lagemaat nor Mr. Myhre attempted to inform the court or the jury that they had reason to believe Capuano was lying under oath.
And then he would taunt me about how much more stuff he had that he hadn't put on the website, but he got it all before I put up the blocks.
QSpeaking of firearms, guns, you said in Tab 10, when we were referring to Tab 10 of the Crown's emails, that you were terrified to learn that Patrick had guns.
AThat he owned them? Yes.
QBut you knew he had guns previously; right?
ANo.
QWhen you were together he didn't have guns?
ANo.
QHe never owned firearms when you were married.
AAbsolutely not. Never once. Patrick had discussed with Lagemaat beforehand that Capuano knew he had firearms when they were together. That's why he pursued it here. She was clearly lying. Lagemaat should have, at least, asked her if it was possible Patrick had firearms at that time and she just didn't know about them. By leaving it as he did it gave the impression Patrick definitely didn't have firearms at that time.
QAnd --
AWe also never went to a shooting range when we were together. Capuano is volunteering information that was not requested. This is a common sign of lying. Lagemaat should have noticed that and asked her why she was offering that information, since it wasn't requested.
QI didn't ask --
AHe put --
Q-- if he went to a shooting range.
ANo.
QHe did not own firearms.
AHe did not own firearms while we were together. He was using a fake social security number at the time. Capuano is again volunteering information which was not solicited. She appears to be attempting to try to change the topic of discussion. Likely because she was lying about Patrick owning firearms when they were together and she was starting to suspect Lagemaat had proof. Lagemaat should have noticed that and asked her why she was changing the topic and volunteering unsolicited information.
QI'm going to -- I'm going to go through the custody situation a little bit of {G*****}, just -- just to clear it up, get a -- a timeline because -- and this will be brief.
So he was born September 27th, 2000, in Phoenix; correct?
AYes.
QYou guys both moved -- moved to Los Angeles, or the three of you moved to Los Angeles sometime 2001, beginning, March.
AYes.
QOctober the same year you moved back to Phoenix?
AYes.
QSometime after that, you said in direct, or I'm asking you now, you went to Florida and you left G. with your mother. You went for a short trip to Florida or whatever, you went to Florida, left G. with your mother.
AIn December, yes.
QHow long were you going to Florida for?
AI was only there for a couple days. I already had a plane ticket back to go get him.
QSo you -- you made a two-day trip to Florida?
ANo, it's a two-day drive. It was going to be a week that I was there.
QSo you were making a one-week trip to Florida and leaving {G*****} with your mother; correct?
ACorrect.
QHow long did you have {G*****} for at that visit? Was it a -- was it a -- what was the period of time you were going to have {G*****} for, or did you have him at that time?
AI had him.
QOkay.
AThere was never any discussion about who would have him.
QOkay.
ARichard never indicated once that he wanted {G*****}.
QSo you went to Florida, Patrick drove and picked up {G*****} from your mother; correct?
ACorrect.
QAnd February 2002, you had a hearing, a joint hearing -- or a custody hearing, you were both there, and you were granted joint, two weeks on, two weeks off; right?
AYes.
QAnd you were directed to move back to Phoenix because --
AI was given the option.
QAnd you agreed.
ANo.
QYou -- you told the court you were going to remain in Florida?
AYes, I did.
QAnd then you took -- the first two weeks was with you; correct?
AYes.
QAnd then Patrick's first two-week access, he came there and picked him up; correct?
AYes.
QAnd is that the last time you saw him for a long period of time?
AYes.
QYou said in direct evidence that Patrick disappeared for 10 years with {G*****}, but then you said nine also. That -- I'm not making anything of that. It was nine or 10 years in that time frame you said Patrick disappeared with {G*****}; correct?
AYes. He showed up twice, in 2005 and 2007.
QBut to your mother, not -- not to you; correct?
ACorrect.
QIsn't that kidnapping?
AYes.
QDid you ever file a police report that your child had been kidnapped?
AYes.
QAnd police took no actions on a kidnapping?
AI didn't know where he was. 2019-01-29 Affidavit of Patrick Fox, paragraph 51
Capuano falsely testified she didn't know where Patrick was.
However, that is contradicted by her earlier testimony that Patrick was, at various times, in contact with, and in the physical presence of, her mother in Phoenix in 2005 - 2007.
  • TR 2017-06-12 p3/38-43
  • TR 2017-06-12 p4/19-21
  • TR 2017-06-12 p4/22-27
  • TR 2017-06-15 p42/13-15
Capuano also admitted in an RCMP interview that on one occasion in particular {G*****} spent the night at her mother's home in Phoenix while Patrick returned to Los Angeles to get his motorcycle.
Both Mr. Lagemaat and Mr. Myhre were present for all of Capuano's testimony, including the contradictory statements referenced above. Moreover, they both had reviewed Capuano's statements to the RCMP prior to trial. Therefore, both Mr. Lagemaat and Mr. Myhre must have known Capuano was perjuring herself when she testified she didn't know where Patrick was. However, neither Mr. Lagemaat nor Mr. Myhre attempted to inform the court or the jury that they had reason to believe Capuano was committing perjury.
I didn't know whether he was in Los Angeles or Phoenix.
QThe police couldn't find him?
ANo. Using what identification? He was Richard Riess in a foreign country.
QBut he must have been working; right?
AI don't know. I don't know that. I don't know if he was getting contract jobs, I don't know if he was working at all, I don't know where he was -- I don't know.
QSo sometime in early 2011 -- well, okay, let's put it this way, then. If you filed a kidnapping report, when they eventually --
AI called CPS, I did not file a kidnapping report.
QOkay. You said previously you filed a kidnapping --
AI did not file a kidnapping report.
Q-- report with police. Lagemaat should have asked Capuano why she had just stated, moments ago, that she HAD filed a kidnapping report. He should have suggested that this is, perhaps, another example of her saying whatever suits her interests at the moment without regard for things like truth or reality.
AI contacted police, I contacted CPS, I contacted attorneys and lawyers. Lagemaat should have confronted Capuano with the fact that none of the agencies she claims to have contacted have any record of her contacting them - or of anyone contacting them regarding {G*****}.
Lagemaat also should have confronted Capuano with why she never contacted the Torrance court - the same thing that had already been addressed in the California family court in 2011. He should have asked her since that question had already been raised by the California family court and her response that she didn't know that's what she could have done had been deemed not credible then why is she again trying to claim it.
QWhy was he not charged with kidnapping if you -- well, you're saying now you didn't file a police report with kidnapping. So sometime in early 2011, Patrick wrote you a letter to reinitiate contact; is that correct?
AYes. I did go and see him in 2009 and demand to know where my son was, and he refused to tell me. But, yes, in 2011 he reached out to me.
QAnd you replied to him in a letter; correct?
AYes.
QDo you recall that letter you sent?
AYes.
QIf you were to see it, would you recognize it?
AYes.
QI'm going to pass you a letter and you can take a look and tell me if you recognize this as the letter you sent him on March 8th, 2011. Take your time, Ms. Capuano.
AYes.
QSo you accept that's a letter you wrote to him?
AYes.
MR. LAGEMAAT: March 8th, 2011? My Lady, I'm going to ask that this letter be made an exhibit.
THE COURT: Mr. Myhre, any objection?
MR. MYHRE: Well, I think my friend can cross-examine Ms. Capuano on her statement. I'm not sure it becomes an exhibit in the trial.
MR. LAGEMAAT: Would you like a copy to the jury to follow along? I'm going to be --
THE COURT: Can I see it, please, so I have some idea of what we're talking about?
MR. LAGEMAAT: I will be going through --
THE COURT: Thank you.
MR. LAGEMAAT: -- a total of three paragraphs, not in -- not the complete paragraphs because the first paragraph is two pages.
THE COURT: I think I need to hear from you about the purpose for which it's tendered or to be used, and maybe that needs to be -- maybe we need to stand down --
MR. LAGEMAAT: I -- I agree, My Lady.
THE COURT: All right. So members of the jury, I'm going to ask you to take a short -- short break, please.
(JURY OUT)
MR. LAGEMAAT: Perhaps would we have --
THE COURT: Yes.
MR. LAGEMAAT: -- Ms. Capuano remain?
THE COURT: Ms. Capuano, I'm going to ask you to remain outside the courtroom while we have this discussion, so we'll stand down very briefly.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
THE COURT: All right.
MR. LAGEMAAT: It's -- it's my theory that this -- this was a custody battle gone very bad and Ms. Capuano has made it look like Mr. Fox essentially -- I use the word kidnapping, but took the child and disappeared for nine years or ten years.
And this letter is the first -- the beginning of a correspondence at the end of that period, and it's her saying what she has been up to, but most importantly in my view it is her saying that she agreed for him to take the child and raise the child, because -- and that's on the first page and then she says she thought it would be better for her to get her life together, and she goes on to explain for a few pages what she has done to do that.
So it's -- it's my position this letter sets out what had happened and the part I am mostly re -- relying on is the first paragraph -- or the second full paragraph, the long one [as read in]:
What changed for me, what made me stop fighting, was a conversation you and I had where you actually asked me not to take {G*****}. You were sincere.
So she agrees in -- in -- and I'm sure she'll have her own point of view, but she agrees that {G*****} should go with him, and then she takes these steps to improve her life and be in a better position for when she could essentially be a mother again, and at one point she says:
I could search him out, that is true, but why would I do that?
which it would be my position that she wasn't taking steps.
THE COURT: So do I take it from that that it would be cross-examination on a previous inconsistent statement?
MR. LAGEMAAT: Yes.
THE COURT: So normally the statement wouldn't go in, and particularly when it's much longer than what you are proposing to cross-examine on.
MR. LAGEMAAT: Then I would suggest I would -- it won't go in and I'll just cross-examine her -- I'll put it to her and cross-examine her on what she said in the letter, but I will read it in.
THE COURT: It may be that her responses will take us to other parts of the letter.
If it gets to the point that the jury is going to need the whole thing in order to understand the evidence, then we might reconsider, but if you are simply proposing to put certain portions to her as previous inconsistent statements then I would think -- subject to any further submissions from either of you, I would think that it shouldn't -- copies should not go to the jury and the statement itself would not be an exhibit.
MR. LAGEMAAT: And what about me reading in sentences to -- or putting those to her?
THE COURT: Well, you need to do that, yes --
MR. LAGEMAAT: Yes, okay. Then --
THE COURT: -- so that the jury knows what she --
MR. LAGEMAAT: Then we'll leave it at that and I'm only relying on small portions, not enough that it needs to be an exhibit.
THE COURT: And I am wondering, since we have broken, whether I should give the jury a mid-trial instruction about previous inconsistent statements --
MR. LAGEMAAT: I -- I think that would be a good time to do that, My Lady.
THE COURT: -- explaining that it would go to credibility only.
MR. LAGEMAAT: Yes.
THE COURT: Yes? Yes, Mr. Myhre?
MR. MYHRE: I agree, My Lady.
MR. LAGEMAAT: And there's one issue -- one -- one other issue I could bring up now, rather than saving -- removing the jury again later, and it's to do with what we talked about Carrington College yesterday, the hearsay.
And I looked back through my student's notes, which are quite precise, and a similar statement was made about her job at Phoenix, that she was told she was let go because she was a security risk.
THE COURT: Yes.
MR. LAGEMAAT: I believe that should be added on to the Carrington instructions.
THE COURT: Do you wish me to give another mid-trial instruction or keep that thought --
MR. LAGEMAAT: Yes.
THE COURT: -- for the final instructions?
MR. LAGEMAAT: I would say keep it for final instructions. I just wanted to bring it up while we have everybody out.
THE COURT: What was it called again?
MR. LAGEMAAT: It -- it was the Phoenix University, her first job that she said she lost, and it was -- she was told she was let go because she was a security risk, and then the Carrington was she was told she didn't get the job because of --
THE COURT: I'm not sure it was Phoenix University.
MR. MYHRE: It was Apollo.
MR. LAGEMAAT: Or, sorry, sorry, Apollo, who owns Phoenix, yes.
MR. MYHRE: And the other was Pima Community College. Pima Community College was the one that she said that she --
MR. LAGEMAAT: Pima -- Pima -- not Carrington, Pima.
MR. MYHRE: -- [indiscernible/ 10:43:55 AM].
MR. LAGEMAAT: I apologize.
THE COURT: All right. Now, logistics, should I be giving the instruction about previous inconsistent statements in the presence of Ms. Capuano or not?
MR. LAGEMAAT: I don't have a submission on that, My Lady.
MR. MYHRE: Me neither, My Lady. I don't think it matters.
THE COURT: All right.
MR. LAGEMAAT: I have no -- either way.
THE COURT: Then we I think only need to stand down once. Will this be a lengthy line of cross- examination? I was -- you were looking at the clock, Mr. Lagemaat, and I'm wondering whether we should just take the morning break early.
MR. LAGEMAAT: I think that would be a good time to do that, My Lady.
THE COURT: Now, I've not given the usual warning to Ms. Capuano. Mr. Myhre, would you just remind her, without saying anything else, please?
MR. MYHRE: I will.
THE COURT: Is there anything else we should deal with?
MR. LAGEMAAT: Not from me, My Lady.
THE COURT: Mr. Sheriff, if you wouldn't mind advising the jury we're going to now take the morning break?
THE SHERIFF: Yes, My Lady.
THE COURT: Thank you.
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)
(JURY IN)
DESIREE CAPUANO, recalled.
THE COURT: Members of the jury, before we continue on this, an instruction I'm going to give you, you're going to hear some cross-examination on -- I'll call it a statement said to have been previously made. It's actually a set of statements. So this is a general instruction that applies to witnesses who are cross -- applies when witnesses are cross- examined about statements they've made on previous occasions.
Common sense tells you that if a witness says one thing in the witness box but has said something quite different on an earlier occasion, this may reduce the value of his or her evidence. The inconsistency may affect the witness's credibility. You will have to decide whether the witness in fact gave an earlier and different version from his or her testimony about the same event. If you find, after you've heard all the evidence, that the witness did give an earlier and different version of events, then you consider whether the differences are significant. You should consider any explanation the witness gives for the differences, you should consider also the fact and nature and extent of any differences when you decide whether and how much to rely on the witness's testimony. That all relates to the witness's credibility.
You must not use the earlier statement as evidence of what actually happened unless you conclude that the witness accepted the earlier statement as true while testifying in the witness box, and even then, as with any evidence, you will decide whether and how much to rely on it.
And finally, if you do not find that the witness gave a different version of events in an earlier statement, you may not use the earlier alleged statement in any way at all. The allegedly inconsistent earlier statement must play no part in your assessment of the witness's credibility or in your determination of what happened.
I will give you instructions similar to these in the instructions I give you at the end of the trial, but because you're about to hear some cross-examination on what is said to be a previous statement, I wanted you to have a preview of how that cross-examination may and may not be used.
All right. Thank you for your attention to that.
CROSS-EXAMINATION BY MR. LAGEMAAT, CONTINUING:
QSo you've accepted, Ms. Capuano, that this is the letter you wrote to Patrick on March 8th, 2011; correct?
AYes.
QI'm going to read in a portion of what you wrote here. Firstly you apologize for typing it. Your handwriting's -- your hand's cramped up and you're lazy and prefer typing. And then you move on that you'll start with you because it's easier. You start in 2001, 2002.
THE COURT: I think, if you're paraphrasing --
MR. LAGEMAAT: Yes.
THE COURT: -- you need to -- it's not clear who --
MR. LAGEMAAT: Okay.
THE COURT: -- you're referring to as "you"
MR. LAGEMAAT:
QMs. Capuano, going -- on the second paragraph, and I'll read in what is eight lines down, what you wrote to Mr. Fox [as read in]:
What changed for me, what made me stop fighting, was a conversation you and I had where you actually asked me not to take {G*****}. You were sincere. You weren't the nicest to {G*****} for the first year when we were still together.
In brackets:
I know you probably don't want to admit it now.
Smiley face, bracket closing.
So to hear that you had a love for him, that touched me. Then when we took him to Florida for those two weeks, Richard, he didn't want to leave you and he certainly didn't want to go with me. There was a bond there. And although it crushed me that he didn't even remember me, it made me happy that he wanted to be with you. If tension and emotions weren't already running so hot, we may have been able to work something out at that point. But to my regret, I let someone else take the lead. I remember the last email I sent to you. It was in response to you saying that, no matter what, {G*****} needed his mother. It was not because I had given up on him, it was because you guys loved each other.
Isn't it accurate, Ms. Capuano, this is referring to you making a decision that it would be best for {G*****} to go with Patrick during this period?
AThe fighting was for custody. The fight that I indicated that I was not going to continue was a fight for custody.
QSo you were giving up on the fight for custody is what you're saying here.
AYes, I wasn't going to try to take him away.
QYou were going to let him go with Patrick. You thought that was --
AWell, I was going to let --
Q-- best for the -- sorry.
AI was going to let the joint custody stand.
QMoving down one, two, three, four, five full lines down [as read in]:
That said, it was so hard to be away from him. It tore me apart and it hurt 10 times worse every time we talked or emailed or anything, so I let you have him.
AMm-hmm.
QYou let him have him.
ADuring that first couple months of the separation and the fighting.
Q
I used that pain as my strength to do everything I could to improve my life, thinking that the day I could be with him again I would have food in my fridge, video games for him to play, bills paid, and money that we could use to go see movies and such.
And I'll -- not to characterize the letter, but in your direct evidence you said you basically got your life together and went to school; correct?
AYes.
QIs that what you're referring to here?
AYes.
QTurning to the second page and about halfway down, if you look in the middle of the sentence -- in the middle of the sentence, there's a new sentence starts with "I vowed at that point". Are you there?
AYes.
QOkay. [As read in]:
I vowed at that point that I was moving back to Phoenix. Actually, I just straight up told Michael we were moving. It was always my plan, primarily because it might be where you and {G*****} were. And if not, at least not so far away from CA.
That's California?
AYes.
QBracket:
I will add here that it absolutely killed me both times {G*****} asked me to see him. I had to think of some way to say no while telling him how so very much I wished I could. That drove me to go to school full- time, including over the summers.
Closing bracket.
Your child wanted to see you and you -- you had to think of some way to tell him no?
AIt was during a conversation in 2005 while he was with my mom and I was in Florida, and then during our conversation in 2007 while he was in Arizona and I was in Florida.
QWhy did he ask --
AHe wanted me to -- he wanted to see me right then.
QSorry, I was speaking. Why did -- he ask you to see him. Why didn't you say yes?
AI was hundreds of miles away without the money to get a plane ticket.
QYet you hadn't seen your child for how long? He asks you to see him and you could not get to where he was, and he's there -- you're -- you're saying in your evidence you didn't know where he was all this time, and all of a sudden now in this letter you're saying he's there, this is where he is, he's called me twice, wants to see me, and you could not make the effort to get there.
AHe was gone days after. Even if I had got on a plane --
QWell --
A-- he might not have been there by the time I got there.
QDid you try?
ANo.
QYou said he might not have.
AHe had contact with my mom.
QPardon me?
AHe had contact with my mom, and my mom was giving me updates of where he was.
QRegardless --
AAnd two days later Mom says, "He's gone." Lagemaat should have crossed Capuano on why, at any of the allegedly brief periods where her mother knew where Patrick and {G*****} were, she didn't contact the Maricopa County Sheriffs at that moment and tell them Patrick was absconding with her son and tell them where he was at that moment.
If Patrick really had been absconding then they would have gone and arrested him.
Moreover, again, if her claims were true and she had just contacted the Torrance Court then a warrant would have been issued for Patrick's arrest. If she had really cared, at all, about {G*****}, then why did she not put even the tiniest effort into finding out what she should have done about it. This whole story of hers seems just like her claims of wanting the website taken down, yet she only files complaints with the wrong service providers or with the wrong authorities.
QRegardless -- regardless, you're saying here he asked you twice and you had to think of some way -- what -- what way did you tell him no? How did you tell him no? Did you lie to him?
ANo. I told him I couldn't get on a plane and told him I couldn't fly out there. I also had no phone number to reach him. He called -- my mom called me from her phone when he was at her house in 2005. I had no phone number to reach him. So if I could have gotten on a plane, all I could have gone was to my mom's, and she may have had some way to reach Richard, but he was the one that was initiating the contact.
QMay have had. So you don't know.
AIf my mom would have had a way to reach him? No, I don't know. Richard is the one that reached out to my mother.
QYou also --
AAnd then in 2007 I tried to call back and no answer. I got no answer. And in 2007, I was already planning on moving.
QBut you had these two opportunities to see your son and you said, "No," and you say you didn't -- you may have got there --
AI wasn't able to.
QI'm sorry, I'm talking -- you may have got there and he wouldn't have been there anymore, but you didn't even make the effort to get there; is that correct?
AI -- I had another child too.
QBut you had a child who'd been missing.
AYes. Yes.
QThank you. Turning to the next page, bottom paragraph [as read in]:
As far as {G*****} goes, I have been waiting a very long time for this to happen and there's no way I'm going to rush anything or make anyone feel uncomfortable in -- in any way. I'm completely prepared for him to have a lot of questions and to not think the world of me. That's okay. He's completely justified in whatever feelings or opinions he has toward me. I hope, like you, that he can overcome them and try. But just knowing how well he's doing is enough for now. I will go at no one else's pace but his. I could search him out, that is true, but why would I do that?
What do you mean by that? You -- you told -- you said earlier you were searching him out. Here you're saying, "I could search him out, that is true, but why would I do that?"
AI'm talking to the man that holds all the cards.
QPardon me?
AI'm talking to the man that holds all the cards. I'm talking to the person that has the location and -- and the whereabouts. Capuano is being melodramatic again. A sign that she's lying or stalling to construct a lie.
Lagemaat should have pointed out Patrick was in custody - there was nowhere he could have gone. He should have asked her why she didn't file something in the family court at that time. The court could have ordered Patrick to disclose {G*****}'s location or be held in contempt. If Capuano responded that she didn't know that's what she could have done, then Lagemaat could have pointed out she'd had a number of years to look into what she could have done - yet she did nothing. Clearly she was not very concerned.
And I'm admitting my faults. I wasn't perfect. I didn't handle that situation perfectly. I didn't. There were a lot of things I could have done a lot different throughout the whole thing, but this is how it happened. Capuano appears to be misdirecting, here. Likely because she was lying about having contacted various authorities and she suspected Lagemaat had proof of such. Lagemaat should have caught that and realized she was attempting to misdirect.
This also would have been a good time for Lagemaat to bring up Capuano's trip to Europe. He should have pointed out that on the one hand she claims to have been so concerned for {G*****} and interested in finding him, yet she's taking vacations she can't afford, to Europe. He also should have pointed out that Capuano claims she couldn't afford a lawyer to help her find Patrick, but she could afford a trip to Europe. This could have shown the jury: 1) that Capuano was lying; and 2) where her priorities really lay.
QSo you didn't search him out during that period.
AI did call CPS. I did not do a social security number search for him.
QSo you --
AI didn't know if that would even get me anywhere.
QAnd you didn't call the police.
AI called CPS, I called Homeland Security, I called all kinds of people. But the police --
QCP --
A-- I called -- I did not make a missing police -- person report with the police. Again, Lagemaat should have confronted Capuano on why neither CPS nor any of the other agencies she claimed to have contacted have any record of any contact from her or about {G*****}. Lagemaat should have crossed her on exactly when she contacted those agencies and what exactly they told her.
Here, Capuano admits she never filed a missing persons report. Lagemaat should have asked her exactly what she did file, or what she requested of those agencies.
QCPS is Child Protection Services --
AYes.
Q-- correct? The best way -- and I continue on:
The best way is for the people he loves, trusts, and knows to give him the information and let him process it in his own way and make his own decision about he wants to do, always. I will hope for a phone call one day, believe me. It's the only thing I wish for, but I'm not going to initiate it.
Is what you said in that letter true or false, that you didn't seek him out?
ATrying to find --
MR. MYHRE: Sorry, that's not an accurate quote.
MR. LAGEMAAT:
QDid you search him out?
ATrying to find his physical location and trying to make contact with him are two different things. I tried to find his location. I did not try to make contact with him.
QThank you.
AYou're welcome. Making contact with him is a much more delicate situation.
QSo going back to the timeline which I was going through before and I -- I stopped at 2011, we're at the end of this nine or -- approximately nine- or 10-year period. August 2011, after sporadic contact with G., and I'm -- I believe it was telephone contact, you show -- you -- you travelled to Los Angeles to see him, to meet him?
ATwice.
QTwice. September 2011 there was a custody hearing in Arizona court?
AYes.
QWhat happened in that custody hearing?
ARichard filed the UCCJEA, said the home state of the child is California, and the judge agreed and made me return him.
QSo it was a jurisdiction argument. He was returned to California; correct?
AYes.
QNovember 8, 2011, custody hearing in California.
AOh, sorry, the one in -- in August was in Arizona.
QYes. I'm moving on now to -- to November 8th. There was a custody hearing in California and again Patrick had the child, correct, and you had visitation?
ANo. In August, the case that was heard was in Arizona. I was trying to move the custody case to Arizona. The one in November 8th was Richard saying that the home state of the child was California --
QWho --
A-- and that I should return him.
QWho walked out of that courtroom November 8th with physical custody? 2011.
APhysical custody wasn't determined at that, it was only the home state of the child. 2019-01-29 Affidavit of Patrick Fox, paragraph 52
Capuano falsely testified that no custody determination was made by the California family court at the November 2011 hearing, that the hearing was only about which state was {G*****}'s “home state” under the UCCJEA.
The minute entries of the hearing prove that is false. The home state issue was discussed amongst the Arizona and California family court judges themselves and the determination was made, prior to the hearing, as required under the UCCJEA. At the time of the hearing, {G*****} was in Capuano's custody in Arizona, pursuant to a temporary emergency custody order she obtained in the Arizona family court in August 2011, based on her false claim Patrick had been hiding {G*****} from her for the past nine years. Then, at the November 2011 hearing, the California family court ordered Capuano to return {G*****} to Patrick's care and custody “without delay” - that is, unquestionably, a custody determination and a change in custody status.
Both Mr. Lagemaat and Mr. Myhre knew of the minute entries of the family court which were on the website. Also, Patrick had discussed the circumstances of the November and December 2011 family court hearings at length with both Mr. Lagemaat and Mr. Myhre prior to trial. Therefore, both Mr. Lagemaat and Mr. Myhre must have known Capuano was lying when she testified. However, both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was lying.
QSo still with Patrick.
A{G*****} was with me at the time.
QOr with you. Sorry. December 6th, 2011, mediation. And where was this mediation? It was in California because that was jurisdiction now; correct?
ACorrect.
QAnd what happened during that mediation?
AWe got joint custody. Primary physical custody was with Richard. I had visitations.
QFebruary 12th, 2012, Patrick petitioned California court to have you do a drug test --
AYes
Q-- for -- for your access, right, before you could -- before he would facilitate your access; correct?
AYes.
QWhy did he want you to do a drug test?
MR. MYHRE: Objection.
MR. LAGEMAAT:
QDid you do the drug test?
ANo.
QAnd that was to do with your arrest; correct?
AYes.
QYour arrest for marijuana possession?
AYes.
QWere you convicted?
ANo.
QWhat happened to that conviction?
AThey were dropped.
QOr the charge. Sorry.
ACharges were dropped.
QUnder what program?
AI did -- I submitted to a test program that does drug testing, random drug testing, and a fine. So I submitted to multiple months of random drug testing --
QAnd what's that --
A-- [indiscernible/overlapping speakers.
Q-- program? I believe the acronym is P-O-P.
ATASC is the program that administered the drug tests.
QNo, no, the --
AIt's a PROP.
Q-- the program under which the -- we have programs here that do similar things. The program under which the conviction is not -- or the charge is not a conviction, there's not --
APROP 202.
QPardon me?
APROP 202.
QPROP 202. What does PROP stand for?
AI don't know.
QOkay. And under that you admit your guilt.
AYes.
QAnd you submit to testing, and they want to see -- I'm asking you, and they want to see that you're doing well, and then there's no conviction, no charge; correct?
ACorrect. Lagemaat should have then crossed Capuano on the emails where she boasts about continuing to use marijuana while doing TASC. This would have shown the jury her disregard for rules and that if she thinks she can get away with something she knows she's not supposed to do then she'll do it anyway. This would also contradict her statements about hating that she was breaking the law by using marijuana prior to getting her medical marijuana card.
Lagemaat also should have crossed Capuano on whether she disclosed to the Arizona Department of Health Services that she had, at the time of her application, an outstanding charge for possession of marijuana; or that she had been using marijuana illegally for more than 11 years.
While on this line of questioning, Lagemaat also should have crossed Capuano on Patrick's claims that she's a drug addict, since that is a claim that has drawn a lot of angry attention. He should have crossed her on how long she's been using marijuana, how frequently she uses it, how many times a day, how soon after waking up? And what other drugs she uses or has used. She would likely try to rationalize her marijuana use by saying it's legal and she has a card. Lagemaat could have countered by pointing out that alcohol is also legal, but if you're drinking every day, and if you're drinking first thing in the morning, you probably have a problem.
QOkay. October 2012, and you talked about this in direct, there was a search warrant on your home. November 28th, 2012, Patrick took the matter into court, he requested to relocate with G. to Vancouver; correct?
AYes.
QAnd that was denied.
ACorrect.
QAnd he stayed in California.
AYes.
QDecember 2012 -- what does ICE stand for? Immigration ...?
ACustody Enforcement, I think.
QYes, Immigration Custody Enforcement. Did you make a report regarding Patrick to ICE?
AI called a tip line.
QAnd is it correct in January 2013 he was arrested?
AYes.
QWhat was the purpose of your tip?
ATo let them know that a person who was not a U.S. citizen was in the United States and he was trying to take my son. Lagemaat should have pursued this further. Capuano made it sound as though she had custody of {G*****} at that time and that Patrick was trying to take him and run off to Canada with him. Lagemaat should have pointed out that Patrick had custody of {G*****}, so how could he have taken {G*****} from her.
If Capuano had responded that what she meant was that Patrick was trying to take away her visitation, then Lagemaat should have asked her if the situation were reversed, if Capuano had found out the police searched Liz's home and found crystal meth and a stolen assault rifle, what would SHE have done. He also should have pointed out that, in fact, the family court documents show that Patrick was NOT trying to take away her visitation, he was only requesting her visitation be supervised until the next scheduled hearing (4 moths away) due to the crystal meth and assault rifle, and her insistence on trying to withhold that kind of information from him. And that Patrick's actions seem clearly motivated by a desire to keep {G*****} safe during his visits with her.
QThat was the tip. What was the purpose of your tip? Why --
ATo have him removed from the country.
QDid you think that would be in your child's best interest for his father to be removed from the country?
AAt this point, yes.
QOr would be in your best interest because then you wouldn't have him there bothering you in California courts making applications, trying to take away your time? Isn't that more accurate, Ms. Capuano?
AHe was in the United States using another name, trying to get a job illegally. In my opinion, it was both. Lagemaat should have, at this point, crossed Capuano on exactly when and under what circumstances she received full custody of {G*****}. This would have shown the jury that she only received custody BECAUSE Patrick was deported - NOT because the family court found her to be a better parent or able to provide a better environment for {G*****}.
Lagemaat also should have crossed Capuano on whether, since that point, {G*****} has told the court he wants to live with Patrick. He did so, through a court appointed mediator, in Spring 2014. The court denied {G*****}'s request at that time, ordering that he would stay with Capuano. This further suggests that Patrick's loss of custody was related to being deported.
This is significant because the Crown and Capuano had led the jury to believe Capuano gained custody based on some determination by the family court that being with her would be in {G*****}'s best interests.
QSo you're concerned for the economy and -- and immigration --
AWell, I was just concerned about my son seeing what's right and wrong --
QPardon me?
A-- and my son being taught that this type of behaviour and going through life lying and pretending is not right.
QBut you had no concern for your marijuana use with your son?
AI had a card. I had a medical marijuana card --
QAt the time you were charged?
ABefore I saw the judge for that -- for that charge, I had my card in hand.
QBut you didn't have it when they came into your home.
AWhen they arrested me, no.
QYes.
AI had a meeting set up with a doctor already. 2019-01-29 Affidavit of Patrick Fox, paragraph 56
Capuano falsely testified she had already scheduled an appointment to see a doctor to apply for a medical marijuana card prior to her arrest for possession of marijuana on September 27, 2011.
The copy of Capuano's medical marijuana applications and the supporting documents on the website prove this is false. Capuano made the appointment to see the doctor AFTER her September 27, 2011 arrest.
On November 1, 2011, before Capuano's application was approved, she was caught by the police, again, possessing marijuana illegally. This time in a public place, when she arrived at the scene of her fiance, Kristopher Lauchner's, arrest, to take custody of her children whom she had left in Lauchner's care while he was committing crimes. On that occasion Capuano, again, lied to the police by claiming she already had a medical marijuana card. Capuano was not arrested at the time, for the sake of the children. This is all documented in the police report which was on the website.
Both Mr. Lagemaat and Mr. Myhre knew of, and had reviewed Capuano's medical marijuana applications, and the Scottsdale Police reports of the September 27, 2011 and the November 1, 2011 arrests. Therefore, they must have known Capuano was lying when she made this statement under oath in her testimony. However, both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QYet -- yet you feel that you need to inform on Patrick when you see him doing something unlawful and knowing the end result could be he's out of the country.
AI told him and asked him many times if we could work amicably on a resolution for the child. 2019-01-29 Affidavit of Patrick Fox, paragraph 54
Capuano falsely testified she told and asked Patrick many times if they could work amicably on a resolution for {G*****}.
However, the court documents and the emails on the website prove that is completely false. There were only two times Capuano appeared to be amicable, and both of those times it was only because she believed she was completely defeated and had absolutely no chance of prevailing:
  • 1. At the December 2011 custody mediation hearing - but only because Capuano knew the family court was very upset with her for having abducted {G*****} in August 2011 (4 months prior), taking him to another state, and getting a temporary emergency custody order by falsely claiming Patrick hid {G*****} from her for nine years. Capuano also had a lawyer representing her at that hearing.
  • 2. Upon Patrick's release from ICE custody in February 2013 - but only because the California family court had said at the hearing two weeks prior that upon Patrick's release he can request an ex parte hearing for {G*****} to be returned to his custody and so, Capuano believed, again, that the family court was very upset with her for having deliberately caused Patrick's arrest and detention by ICE as a way for her to get custody of {G*****}, and that the family court was again going to order her to return {G*****} to Patrick's custody.
Otherwise, every single other court document and every email shows Capuano refusing to cooperate in {G*****}'s interests; refusing to allow {G*****} to visit Patrick unless it was ordered by the family court (or she falsely believed it was ordered by the court); refusing to get {G*****}'s passport until it was ordered by the court; refusing to contribute to {G*****}'s financial needs unless it was ordered by the court; refusing to provide her medical insurance information for {G*****}'s benefit until the court told her she must; refusing to share information with Patrick about {G*****}'s education, medical care, health, et cetera, because she “was not required to under court order”.
Both Mr. Lagemaat and Mr. Myhre knew of and reviewed all of the emails and family court documents on the website. Therefore, they must have known Capuano was committing perjury when she testified to this. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
That was not possible. Multiple times he had tried to remove visitation, multiple times he had tried to interfere with custody, 2019-01-29 Affidavit of Patrick Fox, paragraph 53
Capuano falsely testified that multiple times Patrick had tried to remove her visitation with {G*****} and multiple times he had tried to interfere with her custody of {G*****}.
However, family court documents on the website prove Patrick never sought or requested to remove Capuano's visitation with {G*****}. The most Patrick requested was that her visits be supervised, temporarily, until he next scheduled hearing, and that only because of him finding out about the drug use (crystal methamphetamine) and criminal activity (stolen assault rifle by a prohibited possessor) going on in her home, and her consistent and repeated attempts to conceal that from him and to deny that.
Both Mr. Lagemaat and Mr. Myhre had full access to the family court documents which were on the website, and Patrick had discussed this very issue with both Mr. Lagemaat and Mr. Myhre repeatedly prior to trial. Both Mr. Lagemaat and Mr. Myhre must have known Capuano was committing perjury when she testified on this matter. Yet neither Mr. Lagemaat nor Mr. Myhre attempted to inform the court or the jury that they had reason to believe Capuano was committing perjury.
multiple times he had gone after me for child support when I was the only one financially providing for him, 2019-01-29 Affidavit of Patrick Fox, paragraph 55
Capuano falsely testified that multiple times Patrick had gone after her for child support when she was the only one financially providing for {G*****}.
The emails and court documents, which were on the website, prove that from November 2001 through August 2011, and from November 2011 through December 2012 Capuano did not provide ANY financial support for {G*****} at all. Capuano had provided a single payment in the amount of $75 in September 2012, for partial reimbursement to Patrick's friend, Liz, for some school expenses, and not a penny more. Even in 2012, while Patrick was unable to secure employment in Los Angeles, had sole physical custody of {G*****}, and both he and {G*****} were being supported by Liz, Capuano steadfastly refused to contribute ANYTHING to {G*****}'s support or well-being, stating instead that if Patrick cannot afford to provide for {G*****} then he should send {G*****} to live with her and Patrick will never have to worry about it again. At that time Patrick had no income and Capuano's income was approximately $70,000US/year.
In contrast to Capuano's refusal to contribute any financial support for {G*****} when he is not in her physical presence or custody, following Patrick's deportation to Canada (May 2013), as soon as he secured employment, in July 2013, and continuing until long after he was incarceration on this matter, until there was no money left in his bank account (February or March 2017), he consistently transferred $125CDN per week to {G*****}'s bank account, and he provided {G*****} a credit card to cover any and all support related expenses. The credit card had a limit of $6,000CDN, and {G*****} was authorized to use it for any and all support related expenses. That is also discussed in the emails between Patrick and Capuano.
Both Mr. Lagemaat and Mr. Myhre knew of the emails and court documents which proved that Capuano had never provided any financial support for {G*****} while he was in Patrick's care or custody. Therefore, both Mr. Lagemaat and Mr. Myhre must have known Capuano was committing perjury when she testified on this matter. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano had committed perjury.
besides Liz. Multiple times I had been trying to be a part of my son's life, a good part, and time after time it was negated and torn apart and -- and confusing --
QHe -- he took it away from you.
AHe tried. 2019-01-29 Affidavit of Patrick Fox, paragraph 53
Capuano falsely testified that multiple times Patrick had tried to remove her visitation with {G*****} and multiple times he had tried to interfere with her custody of {G*****}.
However, family court documents on the website prove Patrick never sought or requested to remove Capuano's visitation with {G*****}. The most Patrick requested was that her visits be supervised, temporarily, until he next scheduled hearing, and that only because of him finding out about the drug use (crystal methamphetamine) and criminal activity (stolen assault rifle by a prohibited possessor) going on in her home, and her consistent and repeated attempts to conceal that from him and to deny that.
Both Mr. Lagemaat and Mr. Myhre had full access to the family court documents which were on the website, and Patrick had discussed this very issue with both Mr. Lagemaat and Mr. Myhre repeatedly prior to trial. Both Mr. Lagemaat and Mr. Myhre must have known Capuano was committing perjury when she testified on this matter. Yet neither Mr. Lagemaat nor Mr. Myhre attempted to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QSimilar to what you did on February 6th, 2013, when you went to court requesting sole custody and no communication between --
ATemporarily.
Q-- {G*****} and Patrick, exactly what you're saying he's been doing to you.
AOnly temporarily. Lagemaat should have pursued this further. He should have asked Capuano what the basis or reason was that she was requesting no contact between Patrick and {G*****}. If she said anything other than to enable {G*****} to get settled into her home environment then Lagemaat could have confronted her with the declaration she filed with the family court in January 2013 where she states that as the reason for the request.
Lagemaat should have also drawn the comparison of my requests being based on {G*****}'s safety; while Capuano's requests were based on her convenience.
QTemporarily. Well, that day is what you wanted; correct?
AYes.
QSimilar to what you're just saying he was doing to you or attempting to do to you. And this -- this is -- this is two months after you call the tip line. I suggest -- when I asked you what was the purpose of the tip, I suggest here's the purpose right here, that two months later you have him removed -- you don't have him removed, you make the tip that results in him being removed, and two months later you're in court saying, "Sole -- I get sole custody, I want sole custody, and no communication."
AHere's the difference. Every time that he tried to do that and I defended myself, I won because I was right and I was telling the truth. 2019-01-29 Affidavit of Patrick Fox, paragraph 57
Capuano falsely testified that every time Patrick tried to get sole custody of {G*****} and to revoke all her visitation and communication with {G*****} she won because she was right and she was telling the truth.
The California family court documents and recordings on the website prove that is false. First, they prove that Patrick has never once tried to revoke or “take away”, or even to decrease any of Capuano's visitation with {G*****}. Further, they prove that every time Patrick sought any kind of change to the visitation agreement it was ALWAYS due to newly discovered evidence of criminal activity and drug use in Capuano's home, which directly impacted {G*****}'s safety and well-being while in her care.
The family court documents also show Capuano consistently lied just as frequently and just as easily in those proceedings as as she did in these proceedings.
All of those family court documents were on the website and had been reviewed by both Mr. Lagemaat and Mr. Myhre prior to trial. Therefore, both Mr. Lagemaat and Mr. Myhre must have known Capuano was lying when she made this statement. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano had lied in her testimony.
The one time that I did that to him, he lost because he was lying. 2019-01-29 Affidavit of Patrick Fox, paragraph 58
Capuano falsely testified that the one time she requested sole custody of {G*****} with no visitation or communication between Patrick and {G*****}, Patrick lost because he was lying.
The California and Arizona family court documents, which were on the website, prove that is false. The documents prove Capuano did not try to obtain a court order prohibiting contact between Patrick and {G*****} only one time, as she testified, but rather three times - in September 2011, in January 2013, and in September 2015. The documents also show that Patrick did not make a single false statement, or “lie”, at any time in the family court proceedings. The three subjects which Capuano keeps insisting Patrick lied about have, by now, been well established to be true: his place of birth; his citizenship; and his name. Patrick's real, legal, and birth name is Patrick Fox, just as he has been stating, and that is proven by his government issued identification; he was born in the US, just as he have been stating, and that is proven by CBSA and IRCC documents; and, as a result of being born in the US he is, automatically, a US citizen, just as he has been stating. I do not believe there is anything else Patrick has stated in the family court or in these proceedings which Capuano claims is false.
I believe Patrick lost custody of {G*****}, in 2013, solely because he was deported from the US, not because he lied in the family court.
Mr. Lagemaat and Mr. Myhre had reviewed the family court documents prior to trial; they had seen Patrick's birth certificate and multiple pieces of government issued photo identification - in fact, Mr. Myhre himself had admitted them as an exhibit at the trial. Therefore, both Mr. Lagemaat and Mr. Myhre must have known Capuano was lying when she testified about Patrick lying in the family court.
Moreover, Patrick losing custody of {G*****} occurred immediately following his deportation from the US; and since that time, even though {G*****} has told the court he wants to live with Patrick, the court has refused to return custody to Patrick.
QSo it's about winning and losing.
ANo, it's about telling the truth.
QIt's about winning and losing, just like these emails where it was a game between you, a --
ANo.
Q-- banter of who would get the last word. And at this point it had gone beyond emails of trying to get the last word to in court and immigration and deportations and cutting off communications. It had gone beyond what we --
AAt this point --
Q-- read in the email.
A-- there was no bantering back and forth. There was none. This is -- this is January of 2013. At this point there's no bantering in emails at all. Lagemaat should have pointed out that at that point Patrick was in ICE custody - that's why there was no "bantering".
QSo February 15th, 2013, Patrick was deported again. You -- you'd called ICE again saying he was in the country. He was --
AHe was in the country again.
QHe was deported again. And March 20th, you again called ICE. And this is the day that -- this is the day that there was a court appearance.
AHe thought there was a court appearance.
QHe thought there was -- there was some mix up and there was a court appearance on the list, and he was there. You didn't think he'd be there, so you didn't attend.
AIt was off calendar.
QYes. But he was there, nevertheless.
AYes, he was.
QYou found out he was there from the registrar or the court clerk or somebody at the court. You can correct me on that if I'm wrong. And you called immediately to your source or your person you were working with at the FBI or ICE -- sorry, ICE, and said, "He's there. Go get him"; correct?
AI didn't say go -- "He's there, go get him," no. I did say, "He's in the country again."
QAnd where he -- and exactly precisely where he is; correct?
AThe courthouse.
QYes. And they went and got him and deported him again; right?
AYes.
QYou -- you were going to make sure that he wasn't in America; correct?
AYes.
QDid you find it amusing that you had him deported?
ANo.
QYou didn't find it amusing at all.
ANo. It was scary that he kept coming in. The fact that he would continuously try was flabbergasting.
QBut not amused.
AIn a very ironic way.
QDo you recall giving a statement to the police, a Corporal Wilcott [phonetic] --
AYes.
Q-- on July 13th, 2016?
AYes.
QHow was that statement given?
AI don't remember exactly.
QWere you amused in that statement that he'd been deported?
AI was dumbfounded that he would try again and go to a courthouse.
QI asked you, were you amused?
ANo.
QDid you laugh?
AAmusing in an -- no. Yes, I probably laughed but it was not in amusement.
QIt was in -- what was it in?
AIt was in, "What is this guy thinking?"
QDo you wish you could have been in the courtroom watching or in the courthouse watching when the ICE --
AI would have loved to have seen it.
QWhy?
ABecause he was trying to say that there was a court hearing that was on calendar, it was not on calendar. He's standing there arguing. And I know that when he thinks that he's right about something, he does not give up. And so he's challenging them and he's probably arguing back, and then Immigration walks in.
QProbably. You don't know that.
AOf course not.
QBut you would have loved to have been there to see them come in and get him; correct?
AAt that point, some small victory.
QSmall victory. There we go. Again, you -- you won that part of the game, definitely, because he was removed again.
AHe was wrong. He was in the country illegally. He was in the country illegally 2019-01-29 Affidavit of Patrick Fox, paragraph 59
Capuano falsely testified Patrick was present and living in ”her country” (the US) illegally.
Contrary to Capuano's insistence, she has known since January 2000 that Patrick was born in the US, and therefore is a US citizen. That is why they never applied for permanent resident status for him when they were together and {G*****} was born.
Although it might have been difficult to prove Capuano knew Patrick was not an illegal alien, if Mr. Lagemaat had questioned her about it even a little, I believe it would have become apparent that she was lying to exploit the fact there is a removal order against Patrick in the US Immigration Court - even though the order is based on a faulty perjury and false claim of US citizenship convictions. For example, if Mr. Lagemaat had questioned Capuano on why they did not try to get any type of legal immigration status back in 2000/2001; or why she never reported Patrick to INS/ICE before she learned of the removal order against him; or why she believes ICE and the US Attorney's Office have consistently dropped all charges against him, related to illegal re-entry, even each of the times she called them; or why his fingerprints and mugshot don't match those on file with the Toronto Police for Ricky Riess; or the fact that she already admitted she sent his picture to Ricky Riess's father and he could not identify Patrick as his son; her claim of believing Patrick was an illegal alien and not a US citizen would have quickly lost credibility.
Patrick had discussed the matter of his citizenship at great length with both Mr. Lagemaat and especially with Mr. Myhre prior to trial. And, he had discussed with both Mr. Lagemaat and Mr. Myhre the very points which are listed in the previous paragraph. Patrick had sternly informed both parties that if Capuano makes ANY reference to his citizenship, or claims he was in the US illegally, then he will want her cross examined on the matter to prove she did not truly believe, at any time, that he actually was an illegal alien.
Based on the foregoing, it should have been obvious to both Mr. Lagemaat and Mr. Myhre that Capuano's claims of believing Patrick was an illegal alien were false. And since she did state that belief before the jury, Mr. Lagemaat should have cross examined her to determine if that stated belief was sincere and rational. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was lying.
trying --
QDid you --
A-- to take my kid and make me pay him child support while living in my country illegally. 2019-01-29 Affidavit of Patrick Fox, paragraph 60
Capuano falsely testified Patrick was trying to “take her kid”.
However, Patrick was the one who already had custody of {G*****}. {G*****} had been with Patrick his entire life up to that point. Capuano had never had custody of {G*****}, other than the three months she had abducted him to Arizona and obtained temporary emergency custody based on false claims in 2011. It is completely false to say Patrick was trying to “take {G*****} from her” because he already had sole physical custody - he could not have taken from her what she did not have. If anything, Capuano was the one trying to “take” {G*****} from Patrick - and that is, in fact, exactly what Capuano did, first in August 2011, then in January 2013 by creating a situation whereby Patrick would be removed from the US, by force and against his will, and {G*****} would be required to reside with Capuano, also by force and against his will.
And, the family court documents on the website also prove Patrick never did anything to interfere with, frustrate, or discourage any of Capuano's visitation or contact with {G*****}.
For the most part, the proof that Capuano's statement is false is self-evident, as explained above. The history of {G*****}'s custody and the fact that he had been with Patrick his entire life, was well known to both Mr. Lagemaat and Mr. Myhre. As were the facts that Capuano had never had custody of {G*****}, and had not been present in his life, at all. Therefore, Mr. Lagemaat and Mr. Myhre must have known Capuano's statement was perjurious at the time she made it. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QDid you report --
AYes.
QDid you report Mr. Lauchner when you knew he was using methamphetamine?
ANo. No, he did himself in.
QHe was doing --
AHe damaged himself all by himself. He needed no help from me. Lagemaat should have pursued this further. He should have pointed out that Capuano is saying Lauchner "did himself in", meaning his problems were the result of his own actions. Lagemaat should have asked Capuano how that is different from Patrick publishing the truth about her offensive conduct. Is it the website that's causing her problems or is it her conduct which is exposed through the website which is causing her problems? If Patrick had created a website saying only nice things about her would that cause her problems? He should have pointed out to her that she hasn't lost employment opportunities because of the website, she lost opportunities because people learned of the many horrible things she's done. Isn't it her bad conduct which is causing her problems?
And so why is it okay to say Lauchner "did himself in", but it's not okay to say SHE did herself in?
This would have further shown the jury Capuano's belief that SHE should be able to do things but no one else should be allowed to.
QBut he was breaking the law and you're concerned --
AHe wasn't --
Q-- you're concerned with laws. He was breaking the law while living in your home.
AThe drugs that were in the home he had stashed, 2019-01-29 Affidavit of Patrick Fox, paragraph 61
Capuano falsely testified the drugs in her home were “stashed”.
However, the Glendale and Scottsdale Police reports, which were on the website prove this is false. The Scottsdale Police report of Capuano's arrest shows the marijuana, which was still very illegal in Arizona at the time, was in the night stand next to her bed, not secured. The Glendale Police report of the search warrant shows the crystal methamphetamine was in the garage, unsecured. Photos posted to Capuano's Facebook profile show that she, {SC*****}, and {G*****} did spend time in the garage - where the crystal methamphetamine was being used.
Both Mr. Lagemaat and Mr. Myhre had full access to the police reports, which were publicly accessible on the website. Therefore, they must have known Capuano was perjuring herself when she testified the drugs in her home were “stashed”. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
and when he was breaking the law he was nowhere around. I couldn't even reach him. He wouldn't answer the phone, he wouldn't come back to the house. He was gone all the time. 2019-01-29 Affidavit of Patrick Fox, paragraph 62
Capuano falsely testified that when Lauchner was breaking the law “he was nowhere around”; she “couldn't even reach him”; he wouldn't answer the phone, he wouldn't come back to the house; he was gone all the time.
However, police reports on the website, from the time Capuano was engaged to and living with Lauchner, and Capuano's own sworn statements and declarations in the family court, also on the website, prove that is false. On November 1, 2011, Lauchner was arrested outside the home; he had both of Capuano's children (including {G*****}) with him while he was engaging in committing felonies (passing counterfeit notes, forgery). Lauchner repeatedly possessed and used crystal methamphetamine in the very home Capuano claims he was not around when he was committing crimes - possession of crystal methamphetamine is a felony in the State of Arizona. Lauchner, himself prohibited from possessing or handling firearms due to his prior felonies, stole an assault rifle, then brought and stored that assault rifle in the very home Capuano testified he was never around when he was committing crimes. Capuano admitted to the Glendale Police that she knew Lauchner had stored the rifle in the home; she also knew Lauchner had a long list of prior felonies and so, was prohibited from possessing the rifle.
In particular, Mr. Lagemaat should have cross examined Capuano on the incident when Lauchner was arrested with {G*****} in his care, and her defense of Lauchner’s conduct in the emails with the subject “Legal request” on 2012-02-20. This could have shown the jury that Capuano was aware of Lauchner’s illegal activities and knowingly chose to support them and to put Lauchner before {G*****}, which contributed to Patrick's concerns for {G*****}’s safety and well-being while in her care.
There is another police report and audio recording of an arrest of Lauchner, for shoplifting, on the website, where Lauchner attempts to call Capuano on the telephone. She did not answer the call.
There are numerous emails between Capuano and Patrick, where Patrick informs her of recent criminal activity he had discovered Lauchner was involved in (typically through public arrest records), and Capuano would become hostile and defend Lauchner's conduct.
Both Mr. Lagemaat and Mr. Myhre knew of those emails and the police reports, which were publicly accessible on the website, so they must have known Capuano was lying when she testified. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QAnd you didn't turn yourself in when you were using marijuana without a marijuana card, did you?
ANo. It was the one thing I did that was illegal that I hated, and as soon as it became legal, I got my card. 2019-01-29 Affidavit of Patrick Fox, paragraph 63
Capuano falsely testified that “as soon as medical marijuana became legal, she got her card”.
However, Capuano's medical marijuana application, approval, and card, all of which were on the website, prove that is false. Medical marijuana was legalized in Arizona in November 2010, but Capuano did not apply for a medical marijuana card until October 2011, almost immediately after she was arrested and charged with possession of marijuana. Capuano continued to possess and use marijuana illegally from November 2010 through November 2011.
Both Mr. Lagemaat and Mr. Myhre had full access to and had reviewed all of the content on the website, including Capuano's medical marijuana application. Therefore, they both must have known Capuano was lying when she testified that she got her medical marijuana card as soon as medical marijuana became legal. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was lying under oath.
QThat's the one thing you did that was illegal?
AYes.
QYou've never been arrested other than that?
AFor misdemeanour charges back when I was very young.
QSo you've done other things that were illegal.
AWell --
QThat's not the one thing.
AWorking in an establishment that sold alcohol and getting arrested at the establishment, yes, that's -- that's --
QArrested because they sold alcohol?
AThe -- one of the arrests that I had.
QWhat was the other one?
ABut that was at 18 years old.
QWell, yeah, but the reason I'm asking you, because you said the marijuana was the one thing you've done illegal.
AYes.
QSo there was more things.
AI worked in a strip club that got raided. That was one charge at 18 --
QOkay.
A-- years old. Lagemaat should have pursued this further. He should have crossed Capuano on why she stated in the international news media, in multiple interviews, that everything on the website was "all lies"; why she led the Canadian and US public to believe Patrick had created a website full of lies about her, when in reality everything he said on the website was actually true.
This would have shown the jury that there is no limit to how far Capuano will go with her lies - even to the point of blatantly lying on international news and on television.
This would also have shown the jury that there is a very good chance the reason Capuano wants the website taken down is because it proves that SHE was the one that lied in the news media and that, in fact, everything Patrick has been saying was actually true.
And then the only other charge was marijuana based.
QSo you knew that him being across the border, deported, would be much easier -- or much more difficult for him and easier for you to fight custody battles in court in California; correct?
AHim being out of the country meant that I probably would not have to fight many more custody battles, yes.
QAnd you knew that if it did come down to a custody battle, it would be difficult for him because, look, he's been deported three or four times. That -- that would be difficult for him in getting custody; correct?
ANo. The judge didn't really care about that. Lagemaat should have pursued this further. He should have pointed out the Patrick lost custody of {G*****} IMMEDIATELY after being deported and that since that time the judge has refused to allow {G*****} to return to Patrick's care even though {G*****} clearly told the court that's what he wanted.
The reasonable inference from that would have been that the judge did, in fact, care about Patrick being in the country illegally and being deported. It also would have shown that those very harsh consequences - of being removed from his son's life - were the direct result of Capuano's very deliberate actions.
QI'm going to suggest at this time again that you never, during this time, feared him. This -- this was just a big game, and you've said won and lose; is that correct?
MR. MYHRE: What time?
AThank you.
MR. LAGEMAAT:
QDuring this time that -- that we've gone through all this evidence, the emails that we started with, the ones Crown read in, the ones I read in, these family law hearings, these -- these tips to Immigration, I'm going to suggest this was one big game to you, and you've used the term "win and lose", and that at this point you're winning. You've had him deported, you're winning; correct? Because you were frustrated in the emails, and you've said that. That wasn't getting you anywhere, insulting, demeaning, insulting his manhood, his stature, his family, his intelligence, his maturity, and you weren't winning. But now you're winning, correct? And you've used that term.
AYou're mixing up dates and times and timelines of events pretty severely.
QI'm not talking about timelines and dates --
ADuring 2013, when I was going through a custody battle with him, there -- I was not insulting his manliness, I was not insulting his stature, I was not calling him names. I was fighting a custody battle in 2012. 2019-01-29 Affidavit of Patrick Fox, paragraph 23
Capuano falsely testified, repeatedly, that prior to the period of the emails which were being presented to the jury, that is, prior to 2014, Patrick was frequently and consistently verbally abusive and that prior to January 2015 she had passively accepted that abuse without reciprocating.
  • TR 2017-06-13 p8/6-12
  • TR 2017-06-13 p12/40-45
  • TR 2017-06-13 p13/15-19
  • TR 2017-06-13 p32/28-33
  • TR 2017-06-14 p6/15-18, p6/24-27
  • TR 2017-06-14 p22/3-9
  • TR 2017-06-14 p27/34-37
  • TR 2017-06-14 p36/28-35
  • TR 2017-06-14 p41/41-46
  • TR 2017-06-14 p49/24-34
  • TR 2017-06-14 p50/13-16
  • TR 2017-06-14 p50/36-44
  • TR 2017-06-14 p63/16-21
  • TR 2017-06-14 p64/17-22, p64/27-32
  • TR 2017-06-15 p5/47 - p6/24
  • TR 2017-06-15 p32/23-36
  • TR 2017-06-15 p33/4-5, p33/11-13
  • TR 2017-06-15 p33/32-34
However, those claims are entirely contrary to the actual emails between Capuano and Patrick from 2011 through 2013, as is proven from the following few email conversations during that time: Mr. Lagemaat and Mr. Myhre knew of all of the emails from 2011 through 2013. They knew most of those email conversations began with Patrick attempting to discuss a legitimate subject pertaining to {G*****}, then Capuano becoming belligerent and insulting for no apparent reason. Patrick clearly expressed his desire, in open court, for Capuano to be cross examined on many of those emails, prior to trial.
In spite of the foregoing, Mr. Lagemaat refused to cross examine Capuano on ANY of the emails from 2011 through 2013.
Although both Mr. Lagemaat and Mr. Myhre knew of the content of all of the emails prior to 2014, and therefore knew Capuano had committed perjury each of the 18 times she repeated this claim, neither of them made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
In addition to proving Capuano was perjuring herself with this claim, I believe cross examining her on the emails from 2011 through 2013 would also have proven that the truth of the matter is that Capuano was the one attacking and insulting Patrick for years, and he was the one passively tolerating it, and going out of his way to help and accommodate her; and that it was not until 2014, AFTER she had him deported and took away his child, that he began fighting back. But Mr. Lagemaat and Mr. Myhre insisted against presenting any of that to the jury. However, many of those emails were submitted by Patrick at sentencing.
In 2013, when he was deported, I got custody of our son and, yet, I called a tip line. Yes, the intent was to have him removed from the country. Yes, he came back multiple times and, yes, I called each time. I did end up with custody. But even then he got visitation Lagemaat should have pursued this statement further. The way Capuano phrased it ("but even then") shows that she was very upset about Patrick getting visitation, that she was expecting he would not have. At this point in the cross, Capuano was very agitated and obviously speaking frankly. With a little more pushing Lagemaat, likely, could have gotten Capuano to admit that the only reason she called ICE was to get custody of {G*****} by default, or to get back at Patrick (revenge).
Lagemaat also should have crossed her on her consistently refusing to allow {G*****} to visit unless the court ordered her to. These are contrary to Capuano's claims that she "allowed" visitation and that she wanted {G*****} to have a relationship with both parents.
and I never went after him for child support. Lagemaat should have pursued this further. He should have pointed out that child support is for the benefit of the child - not the parent. Didn't she want the best for {G*****}?
Lagemaat also should have pointed out that Capuano never had to "go after Patrick" for child support because Patrick immediately and proactively started providing {G*****} support as soon as he started working.
Lagemaat also should have crossed Capuano on the emails where she decided not to allow Patrick to provide things for {G*****} while he's in her care. He should have asked her what kind of mother would refuse to let her child have financial stability and a better life.
Capuano likely would have responded that Patrick providing for {G*****} was creating an imbalance between the children in her home and she couldn't have that. Lagemaat then could have pointed out that if she allowed Patrick to provide for {G*****} then she would have had more resources to better provide for {S*****} as well. He should have asked her whether she'd considered that. He should have asked her why she didn't want her children to have a more comfortable life.
Capuano likely would have said that money is not that important to her, that Patrick was spoiling {G*****}, and that she didn't want her children thinking material stuff was all that mattered. Lagemaat then could have confronted her with the emails from 2011 and 2012 where she belittled Patrick about his inability to provide for {G*****}, and bragged about how she could provide him a much more comfortable life. That would have shown the jury Capuano's hypocrisy and shown that her current arguments are insincere.

The insults and the bantering didn't happen until late 2014, and none of that happened until after the website went up. 2019-01-29 Affidavit of Patrick Fox, paragraph 23
Capuano falsely testified, repeatedly, that prior to the period of the emails which were being presented to the jury, that is, prior to 2014, Patrick was frequently and consistently verbally abusive and that prior to January 2015 she had passively accepted that abuse without reciprocating.
  • TR 2017-06-13 p8/6-12
  • TR 2017-06-13 p12/40-45
  • TR 2017-06-13 p13/15-19
  • TR 2017-06-13 p32/28-33
  • TR 2017-06-14 p6/15-18, p6/24-27
  • TR 2017-06-14 p22/3-9
  • TR 2017-06-14 p27/34-37
  • TR 2017-06-14 p36/28-35
  • TR 2017-06-14 p41/41-46
  • TR 2017-06-14 p49/24-34
  • TR 2017-06-14 p50/13-16
  • TR 2017-06-14 p50/36-44
  • TR 2017-06-14 p63/16-21
  • TR 2017-06-14 p64/17-22, p64/27-32
  • TR 2017-06-15 p5/47 - p6/24
  • TR 2017-06-15 p32/23-36
  • TR 2017-06-15 p33/4-5, p33/11-13
  • TR 2017-06-15 p33/32-34
However, those claims are entirely contrary to the actual emails between Capuano and Patrick from 2011 through 2013, as is proven from the following few email conversations during that time: Mr. Lagemaat and Mr. Myhre knew of all of the emails from 2011 through 2013. They knew most of those email conversations began with Patrick attempting to discuss a legitimate subject pertaining to {G*****}, then Capuano becoming belligerent and insulting for no apparent reason. Patrick clearly expressed his desire, in open court, for Capuano to be cross examined on many of those emails, prior to trial.
In spite of the foregoing, Mr. Lagemaat refused to cross examine Capuano on ANY of the emails from 2011 through 2013.
Although both Mr. Lagemaat and Mr. Myhre knew of the content of all of the emails prior to 2014, and therefore knew Capuano had committed perjury each of the 18 times she repeated this claim, neither of them made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
In addition to proving Capuano was perjuring herself with this claim, I believe cross examining her on the emails from 2011 through 2013 would also have proven that the truth of the matter is that Capuano was the one attacking and insulting Patrick for years, and he was the one passively tolerating it, and going out of his way to help and accommodate her; and that it was not until 2014, AFTER she had him deported and took away his child, that he began fighting back. But Mr. Lagemaat and Mr. Myhre insisted against presenting any of that to the jury. However, many of those emails were submitted by Patrick at sentencing.
And I never called for harassment until after the website went up. I never called for fear of my life until the email that said he was -- he thought about shooting me. 2019-01-29 Affidavit of Patrick Fox, paragraph 64
Capuano falsely testified she she never called for fear of her life until the email that Patrick said he thought about shooting her.
  • TR 2017-06-15 p32/37-39
  • TR 2017-06-15 p33/6-11
However, the emails on the website; the Sahuarita Police reports; the RCMP reports from July 2015; Capuano's declaration in support of her request for an order of protection and her statements at the order of protection hearing in December 2015; all prove that is false. The first time Capuano made any mention of being afraid for her safety - let alone afraid for her life - or of feeling threatened was AFTER speaking with CBC in January 2016 - more than a year after she had read and responded to the email in question. Also, Capuano's claims of being afraid for her life were purportedly made to the news media, NOT to any court or law enforcement agency. Though, in the CBC segment which aired and was published, it was only the CBC reporter, Natalie Clancy, who stated “Talk of shooting left Capuano fearing for her and her fiance's safety”. There is no evidence that even at THAT point Capuano actually expressed any fear for her safety from Patrick.
The fact is, Capuano did not claim to have any fear for her safety from Patrick until more than a year AFTER reading and responding to the very email she testified was the basis for that fear. Moreover, Capuano never called, or otherwise initiated contact with any law enforcement agency claiming to fear for her safety from Patrick. In, and since, June 2016 it has been the RCMP and Victim Services that have contacted Capuano about proceeding with a criminal harassment charge against Patrick - it was not Capuano who contacted the RCMP in June 2016, complaining of harassment or fear for her safety.
Also, Capuano admitted in her own testimony that she was only seeking the order of protection in Arizona because she believed it was required in order to get the website taken down.
  • TR 2017-06-13 p58/10-16
  • TR 2017-06-15 p38/40-42
Capuano also discussed that in greater detail in her 2016-07-13 RCMP interview, at paragraphs 822-826.
And, as a point of fact, Patrick never stated in that email, or at any other time, that he “thought of shooting” Capuano. That is Capuano's own clear and gross misrepresentation of the wording of that email. If anything, it was their son who had “thought of shooting” Capuano - he asked the question, and Patrick was merely responding to his question.
Both Mr. Lagemaat and Mr. Myhre knew of all of the emails, police reports, court declarations, and statements to the news media which proved Capuano did not, at any time, sincerely fear for her life from Patrick. Therefore, both Mr. Lagemaat and Mr. Myhre must have known Capuano was lying when she made this statement. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QTwo --
ASo, no, what you --
QTwo --
A-- said was incorrect.
Q2014 --
AYes.
Q-- winter visit.
AYes.
QDo you recall what the -- when that was? It was -- I'm assuming was it his -- G.'s Christmas vacation from school?
AYes. And again, that is when the bantering started, as I said. 2019-01-29 Affidavit of Patrick Fox, paragraph 23
Capuano falsely testified, repeatedly, that prior to the period of the emails which were being presented to the jury, that is, prior to 2014, Patrick was frequently and consistently verbally abusive and that prior to January 2015 she had passively accepted that abuse without reciprocating.
  • TR 2017-06-13 p8/6-12
  • TR 2017-06-13 p12/40-45
  • TR 2017-06-13 p13/15-19
  • TR 2017-06-13 p32/28-33
  • TR 2017-06-14 p6/15-18, p6/24-27
  • TR 2017-06-14 p22/3-9
  • TR 2017-06-14 p27/34-37
  • TR 2017-06-14 p36/28-35
  • TR 2017-06-14 p41/41-46
  • TR 2017-06-14 p49/24-34
  • TR 2017-06-14 p50/13-16
  • TR 2017-06-14 p50/36-44
  • TR 2017-06-14 p63/16-21
  • TR 2017-06-14 p64/17-22, p64/27-32
  • TR 2017-06-15 p5/47 - p6/24
  • TR 2017-06-15 p32/23-36
  • TR 2017-06-15 p33/4-5, p33/11-13
  • TR 2017-06-15 p33/32-34
However, those claims are entirely contrary to the actual emails between Capuano and Patrick from 2011 through 2013, as is proven from the following few email conversations during that time: Mr. Lagemaat and Mr. Myhre knew of all of the emails from 2011 through 2013. They knew most of those email conversations began with Patrick attempting to discuss a legitimate subject pertaining to {G*****}, then Capuano becoming belligerent and insulting for no apparent reason. Patrick clearly expressed his desire, in open court, for Capuano to be cross examined on many of those emails, prior to trial.
In spite of the foregoing, Mr. Lagemaat refused to cross examine Capuano on ANY of the emails from 2011 through 2013.
Although both Mr. Lagemaat and Mr. Myhre knew of the content of all of the emails prior to 2014, and therefore knew Capuano had committed perjury each of the 18 times she repeated this claim, neither of them made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
In addition to proving Capuano was perjuring herself with this claim, I believe cross examining her on the emails from 2011 through 2013 would also have proven that the truth of the matter is that Capuano was the one attacking and insulting Patrick for years, and he was the one passively tolerating it, and going out of his way to help and accommodate her; and that it was not until 2014, AFTER she had him deported and took away his child, that he began fighting back. But Mr. Lagemaat and Mr. Myhre insisted against presenting any of that to the jury. However, many of those emails were submitted by Patrick at sentencing.
And I never called for harassment until the website went up, and I never called for physical harm of my safety until after the email was sent that said he was -- he thought of shooting me. That is when the physical fear for my safety started. Never called for that beforehand. 2019-01-29 Affidavit of Patrick Fox, paragraph 64
Capuano falsely testified she she never called for fear of her life until the email that Patrick said he thought about shooting her.
  • TR 2017-06-15 p32/37-39
  • TR 2017-06-15 p33/6-11
However, the emails on the website; the Sahuarita Police reports; the RCMP reports from July 2015; Capuano's declaration in support of her request for an order of protection and her statements at the order of protection hearing in December 2015; all prove that is false. The first time Capuano made any mention of being afraid for her safety - let alone afraid for her life - or of feeling threatened was AFTER speaking with CBC in January 2016 - more than a year after she had read and responded to the email in question. Also, Capuano's claims of being afraid for her life were purportedly made to the news media, NOT to any court or law enforcement agency. Though, in the CBC segment which aired and was published, it was only the CBC reporter, Natalie Clancy, who stated “Talk of shooting left Capuano fearing for her and her fiance's safety”. There is no evidence that even at THAT point Capuano actually expressed any fear for her safety from Patrick.
The fact is, Capuano did not claim to have any fear for her safety from Patrick until more than a year AFTER reading and responding to the very email she testified was the basis for that fear. Moreover, Capuano never called, or otherwise initiated contact with any law enforcement agency claiming to fear for her safety from Patrick. In, and since, June 2016 it has been the RCMP and Victim Services that have contacted Capuano about proceeding with a criminal harassment charge against Patrick - it was not Capuano who contacted the RCMP in June 2016, complaining of harassment or fear for her safety.
Also, Capuano admitted in her own testimony that she was only seeking the order of protection in Arizona because she believed it was required in order to get the website taken down.
  • TR 2017-06-13 p58/10-16
  • TR 2017-06-15 p38/40-42
Capuano also discussed that in greater detail in her 2016-07-13 RCMP interview, at paragraphs 822-826.
And, as a point of fact, Patrick never stated in that email, or at any other time, that he “thought of shooting” Capuano. That is Capuano's own clear and gross misrepresentation of the wording of that email. If anything, it was their son who had “thought of shooting” Capuano - he asked the question, and Patrick was merely responding to his question.
Both Mr. Lagemaat and Mr. Myhre knew of all of the emails, police reports, court declarations, and statements to the news media which proved Capuano did not, at any time, sincerely fear for her life from Patrick. Therefore, both Mr. Lagemaat and Mr. Myhre must have known Capuano was lying when she made this statement. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
And I never called for harassment before the website, even with all of the emails and the custody battle. I put up with a lot.
QBut you've said -- you've said in evidence here you've been harassed for years.
AWell, yes, to me it's harassment. And even in some of those emails. 2019-01-29 Affidavit of Patrick Fox, paragraph 23
Capuano falsely testified, repeatedly, that prior to the period of the emails which were being presented to the jury, that is, prior to 2014, Patrick was frequently and consistently verbally abusive and that prior to January 2015 she had passively accepted that abuse without reciprocating.
  • TR 2017-06-13 p8/6-12
  • TR 2017-06-13 p12/40-45
  • TR 2017-06-13 p13/15-19
  • TR 2017-06-13 p32/28-33
  • TR 2017-06-14 p6/15-18, p6/24-27
  • TR 2017-06-14 p22/3-9
  • TR 2017-06-14 p27/34-37
  • TR 2017-06-14 p36/28-35
  • TR 2017-06-14 p41/41-46
  • TR 2017-06-14 p49/24-34
  • TR 2017-06-14 p50/13-16
  • TR 2017-06-14 p50/36-44
  • TR 2017-06-14 p63/16-21
  • TR 2017-06-14 p64/17-22, p64/27-32
  • TR 2017-06-15 p5/47 - p6/24
  • TR 2017-06-15 p32/23-36
  • TR 2017-06-15 p33/4-5, p33/11-13
  • TR 2017-06-15 p33/32-34
However, those claims are entirely contrary to the actual emails between Capuano and Patrick from 2011 through 2013, as is proven from the following few email conversations during that time: Mr. Lagemaat and Mr. Myhre knew of all of the emails from 2011 through 2013. They knew most of those email conversations began with Patrick attempting to discuss a legitimate subject pertaining to {G*****}, then Capuano becoming belligerent and insulting for no apparent reason. Patrick clearly expressed his desire, in open court, for Capuano to be cross examined on many of those emails, prior to trial.
In spite of the foregoing, Mr. Lagemaat refused to cross examine Capuano on ANY of the emails from 2011 through 2013.
Although both Mr. Lagemaat and Mr. Myhre knew of the content of all of the emails prior to 2014, and therefore knew Capuano had committed perjury each of the 18 times she repeated this claim, neither of them made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
In addition to proving Capuano was perjuring herself with this claim, I believe cross examining her on the emails from 2011 through 2013 would also have proven that the truth of the matter is that Capuano was the one attacking and insulting Patrick for years, and he was the one passively tolerating it, and going out of his way to help and accommodate her; and that it was not until 2014, AFTER she had him deported and took away his child, that he began fighting back. But Mr. Lagemaat and Mr. Myhre insisted against presenting any of that to the jury. However, many of those emails were submitted by Patrick at sentencing.
Finding out how I vote based off of my driver's licence and asking me to confirm if I've changed my voting registration out of the blue, no prompting, that's scary. Telling me that he's got private investigators following me, that's scary. Lagemaat should have pursued this statement further. The Florida voter registrations are public record - they're on the Internet. Everyone has access to them. That's where Patrick got the information from. Lagemaat should have suggested that if Capuano didn't want her information publicly accessible on the Internet then she shouldn't put it publicly on the Internet.
He should have pointed out that the public voter registration information had nothing at all to do with her driver's license, and he should have asked her why she says Patrick obtained the information from her driver's license. This could have shown the jury that much of what Capuano is claiming is based on absolutely nothing - she's just making it up as she goes.
Lagemaat should have pressed Capuano on exactly why it's "scary" that someone would find her publicly accessible voter information on the Internet. Her claim of it being "scary" is overly vague.
That happened in 2012.
QNone of that's against the law, though, is it?
ANo, but it's still scary. And to me it's harassment.
QAnd you were scared at the time, and this is also the time when -- I'm not going to go through them again, where there's the emails.
ANo, that's 2014.
Q2014. You were scared in 2014.
AYes. That was when the harassment started.
QAnd that's also when you were partaking in -- in this what we -- we're calling banter; correct?
ALate 2014. Months after the website went up. 2019-01-29 Affidavit of Patrick Fox, paragraph 23
Capuano falsely testified, repeatedly, that prior to the period of the emails which were being presented to the jury, that is, prior to 2014, Patrick was frequently and consistently verbally abusive and that prior to January 2015 she had passively accepted that abuse without reciprocating.
  • TR 2017-06-13 p8/6-12
  • TR 2017-06-13 p12/40-45
  • TR 2017-06-13 p13/15-19
  • TR 2017-06-13 p32/28-33
  • TR 2017-06-14 p6/15-18, p6/24-27
  • TR 2017-06-14 p22/3-9
  • TR 2017-06-14 p27/34-37
  • TR 2017-06-14 p36/28-35
  • TR 2017-06-14 p41/41-46
  • TR 2017-06-14 p49/24-34
  • TR 2017-06-14 p50/13-16
  • TR 2017-06-14 p50/36-44
  • TR 2017-06-14 p63/16-21
  • TR 2017-06-14 p64/17-22, p64/27-32
  • TR 2017-06-15 p5/47 - p6/24
  • TR 2017-06-15 p32/23-36
  • TR 2017-06-15 p33/4-5, p33/11-13
  • TR 2017-06-15 p33/32-34
However, those claims are entirely contrary to the actual emails between Capuano and Patrick from 2011 through 2013, as is proven from the following few email conversations during that time: Mr. Lagemaat and Mr. Myhre knew of all of the emails from 2011 through 2013. They knew most of those email conversations began with Patrick attempting to discuss a legitimate subject pertaining to {G*****}, then Capuano becoming belligerent and insulting for no apparent reason. Patrick clearly expressed his desire, in open court, for Capuano to be cross examined on many of those emails, prior to trial.
In spite of the foregoing, Mr. Lagemaat refused to cross examine Capuano on ANY of the emails from 2011 through 2013.
Although both Mr. Lagemaat and Mr. Myhre knew of the content of all of the emails prior to 2014, and therefore knew Capuano had committed perjury each of the 18 times she repeated this claim, neither of them made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
In addition to proving Capuano was perjuring herself with this claim, I believe cross examining her on the emails from 2011 through 2013 would also have proven that the truth of the matter is that Capuano was the one attacking and insulting Patrick for years, and he was the one passively tolerating it, and going out of his way to help and accommodate her; and that it was not until 2014, AFTER she had him deported and took away his child, that he began fighting back. But Mr. Lagemaat and Mr. Myhre insisted against presenting any of that to the jury. However, many of those emails were submitted by Patrick at sentencing.
QWell, Ms. Capuano, the emails I started on were January 2014, not late 2014.
AHe hadn't put the website up in January of 2014.
QThat's the -- I'm talking about the emails I --
AWhich one?
Q-- I was going through. So 2014 winter visit for Christmas vacation.
AYes.
QAs per the court order; correct?
AYes. 2019-01-29 Affidavit of Patrick Fox, paragraph 4
Capuano falsely testified, repeatedly, she continued to engage Patrick in communication and to allow their son, {G*****}, to visit Patrick in Vancouver because she was required to under order of the family court.
  • TR 2017-06-13 p35/33-35
  • TR 2017-06-13 p60/30-33
  • TR 2017-06-14 p3/11-13
  • TR 2017-06-14 p38/32-36
  • TR 2017-06-15 p4/31-36, p4/40-42
  • TR 2017-06-15 p6/5-9
  • TR 2017-06-15 p33/43-44
  • TR 2017-06-15 p34/27-29
  • TR 2017-06-15 p34/41-44
However, Capuano admitted in her testimony, she “had full control over visitation and determining that visitation”.
  • TR 2017-06-15 p2/29-30
The minute entries from the July 2014 family court hearing show Patrick voluntarily waived all parental rights, and Capuano was, therefore, no longer required to allow ANY visitation or communication between Patrick and {G*****}.
After admitting she had “full control over visitation” Capuano continued to testify she was required, under court order, to communicate with Patrick and to allow {G*****} to visit him.
Patrick had discussed Capuano's false claims that she was required, under court order, to communicate with him and to allow {G*****} to visit him, with both Mr. Lagemaat and Mr. Myhre prior to trial because Capuano had also falsely stated such in her RCMP interviews. Also, Capuano stated in her RCMP interviews that Patrick had waived all parental rights in the family court order in July 2014, giving her sole authority in all matters pertaining to {G*****} from that point forward. Therefore, Mr. Lagemaat and Mr. Myhre knew, at the time of Capuano's testimony, that her repeated claim of being required, under court order, to communicate with Patrick and to allow {G*****} to visit was false.
Mr. Lagemaat failed or refused to confront or to cross examine Capuano with the proof that her testimony was false. Both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QSo you'd had Mr. Fox -- not had Mr. Fox deported, but you'd made -- you'd made the calls that had resulted in him being deported, yet you -- still in 2014, you followed the court order, you sent {G*****} up there.
AYes.
QDid you not think to try to take away that visitation? Were you not worried of what would happen up there? You've said how worried you were about Mr. Fox --
AYes.
Q-- yet you sent your son up there to be with him --
AYes.
Q-- correct? 2015 summer visit. And it would seem, from your evidence in direct, that by 2015 would you agree things had escalated --
AYes.
Q-- in the communications in -- and the communications being the emails because that was the only communication. And in May 2015, you went through this in direct evidence, he sent you an email with his PAL attached.
AYes.
QWhich is another acronym. I -- I don't know what it stands for. It's a firearms licence; correct?
AUp here in Canada, yes.
QYes. So you knew he had firearms and you've said you were afraid knowing, and alarmed and -- knowing he had this identity and firearms, but you still sent your son up there --
AI was still required under law. 2019-01-29 Affidavit of Patrick Fox, paragraph 4
Capuano falsely testified, repeatedly, she continued to engage Patrick in communication and to allow their son, {G*****}, to visit Patrick in Vancouver because she was required to under order of the family court.
  • TR 2017-06-13 p35/33-35
  • TR 2017-06-13 p60/30-33
  • TR 2017-06-14 p3/11-13
  • TR 2017-06-14 p38/32-36
  • TR 2017-06-15 p4/31-36, p4/40-42
  • TR 2017-06-15 p6/5-9
  • TR 2017-06-15 p33/43-44
  • TR 2017-06-15 p34/27-29
  • TR 2017-06-15 p34/41-44
However, Capuano admitted in her testimony, she “had full control over visitation and determining that visitation”.
  • TR 2017-06-15 p2/29-30
The minute entries from the July 2014 family court hearing show Patrick voluntarily waived all parental rights, and Capuano was, therefore, no longer required to allow ANY visitation or communication between Patrick and {G*****}.
After admitting she had “full control over visitation” Capuano continued to testify she was required, under court order, to communicate with Patrick and to allow {G*****} to visit him.
Patrick had discussed Capuano's false claims that she was required, under court order, to communicate with him and to allow {G*****} to visit him, with both Mr. Lagemaat and Mr. Myhre prior to trial because Capuano had also falsely stated such in her RCMP interviews. Also, Capuano stated in her RCMP interviews that Patrick had waived all parental rights in the family court order in July 2014, giving her sole authority in all matters pertaining to {G*****} from that point forward. Therefore, Mr. Lagemaat and Mr. Myhre knew, at the time of Capuano's testimony, that her repeated claim of being required, under court order, to communicate with Patrick and to allow {G*****} to visit was false.
Mr. Lagemaat failed or refused to confront or to cross examine Capuano with the proof that her testimony was false. Both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
Q-- to spend the summer with him.
AYes.
QCorrect. So you -- I -- I suggest you weren't really afraid of anything at that time because your son, in your evidence, means so much to him -- to you, you wouldn't have sent him up there if you thought there was any danger, would you?
AI don't think Richard's going to hurt {G*****}.
QWhat about keep him?
AThat is a risk, yes.
QBut you sent him. You weren't afraid.
AI had to. At that point he hadn't kept him --
QAnd we --
A-- so I had no basis to change that in the court yet. 2019-01-29 Affidavit of Patrick Fox, paragraph 4
Capuano falsely testified, repeatedly, she continued to engage Patrick in communication and to allow their son, {G*****}, to visit Patrick in Vancouver because she was required to under order of the family court.
  • TR 2017-06-13 p35/33-35
  • TR 2017-06-13 p60/30-33
  • TR 2017-06-14 p3/11-13
  • TR 2017-06-14 p38/32-36
  • TR 2017-06-15 p4/31-36, p4/40-42
  • TR 2017-06-15 p6/5-9
  • TR 2017-06-15 p33/43-44
  • TR 2017-06-15 p34/27-29
  • TR 2017-06-15 p34/41-44
However, Capuano admitted in her testimony, she “had full control over visitation and determining that visitation”.
  • TR 2017-06-15 p2/29-30
The minute entries from the July 2014 family court hearing show Patrick voluntarily waived all parental rights, and Capuano was, therefore, no longer required to allow ANY visitation or communication between Patrick and {G*****}.
After admitting she had “full control over visitation” Capuano continued to testify she was required, under court order, to communicate with Patrick and to allow {G*****} to visit him.
Patrick had discussed Capuano's false claims that she was required, under court order, to communicate with him and to allow {G*****} to visit him, with both Mr. Lagemaat and Mr. Myhre prior to trial because Capuano had also falsely stated such in her RCMP interviews. Also, Capuano stated in her RCMP interviews that Patrick had waived all parental rights in the family court order in July 2014, giving her sole authority in all matters pertaining to {G*****} from that point forward. Therefore, Mr. Lagemaat and Mr. Myhre knew, at the time of Capuano's testimony, that her repeated claim of being required, under court order, to communicate with Patrick and to allow {G*****} to visit was false.
Mr. Lagemaat failed or refused to confront or to cross examine Capuano with the proof that her testimony was false. Both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QAnd we went through the emails where we talked about the definition of "itinerary". You never got that return ticket. You sent him up there on a one-way ticket; correct?
AYes.
QYet you had all these fears, you knew he had firearms, you knew he had a new identity, and you sent your son there on a one-way ticket. Yes or no?
AYes.
QI want to move on a bit to the GoFundMe page which you talked about in direct evidence. I ask you, if this was as terrible for you and your family, everybody, as you make it out to be, and you say what a terrible person Mr. Fox is, why didn't you just go underground? You're -- you work in IT, you've done some court applications on your own, which we've seen, you've -- you're not -- you're not a -- you're a sophisticated person as far as the internet. Why didn't you just change your name?
AIt's public record.
QIf you change your name, it's public record?
AYes.
QOkay. So you looked into that?
AYes. Capuano seems to be misdirecting here. And she's false about the name change being public record. If she tells the court she needs to change her name to avoid or prevent further harm or harassment the court can order the record sealed. This shows that she, in fact, didn't look into it all - or she's lying.
Lagemaat should have known this and crossed her on it in more detail. This would have, again, shown the jury that Capuano is making up stories and lies as she goes.
At this point, Lagemaat also should have crossed Capuano on her statements in the news media about her plan or intention to change her name and disappear with {G*****}. That is another example of Capuano accusing Patrick of doing exactly what she herself was doing or intending to do - even though Patrick hadn't and wouldn't do it.
QSo --
ASo is buying a house. Capuano is volunteering unsolicited information again. Lagemaat should have known that this is a misdirection tactic - probably because he had brought up the GoFundMe page and Capuano knew she did not have a good explanation for it. She was trying to change the focus.
QSo it just simply wouldn't work. You couldn't just change your name and --
AHe'd find it.
QHe'd find it. Then why did you ask the public to give you $10,000 --
AJust the minimum.
Q-- to change your name?
AThat's the typical GoFundMe limit. It's --
QWell, I don't think so, because GoFundMe, you choose the limit.
AAsking people for $10,000, I -- I set the limit at $10,000 because that was what was suggested. 2019-01-29 Affidavit of Patrick Fox, paragraph 65
Capuano falsely testified she set the target amount for her GoFundMe campaign to $10,000US because that was the minimum she could choose.
Capuano then contradicted herself by stating she set the target to $10,000US because that was “the typical GoFundMe limit”.
  • TR 2017-06-15 p35/33-35
Capuano then contradicted herself again by stating she set the target to $10,000US because that was what was suggested to her by someone.
  • TR 2017-06-15 p35/36-37
The proof that Capuano was lying about the GoFundMe limit is self-evident - she contradicted herself twice.
Both Mr. Lagemaat and Mr. Myhre were present for this testimony. They must have known Capuano was lying about at least two of the reasons she had provided. Yet neither Mr. Lagemaat nor Mr. Myhre attempted to inform the court or the jury that they had reason to believe Capuano was lying in her testimony.
But you actually have to go out and repeatedly ask people for money. I set it up and never sent any additional requests. You're supposed to go and put it on Facebook all the time, and you're supposed to send it out to your friends and family, you're supposed to have them send it out to their friends and family. Never did any of that.
QI'm not --
AI put it up once.
QI'm not asking you what you did to follow up, I'm asking you, you at one point asked the public for $10,000 to change your name, but you've just said --
AInitially.
Q-- you -- you knew that changing your name doesn't help.
AChanging -- yeah, I would have to seal all of my records.
QThen why didn't you just do that?
AI don't know how. I don't know how. I don't know how. I don't ...
QDid you ever Google how to seal public records?
AYes, and it's really confusing. It would take a lawyer. This is completely false - you can't seal your public records. You can only seal public court records, not non-court related records. And Capuano was not speaking of court records. Lagemaat should have known this. He should have pursued it further because it would have become apparent Capuano was making it up.
QAnd I suggest to you that if it was as terrible as you're making it out to be, you would have changed everything, had your records sealed, found the money for a lawyer, and done it.
AWhy? Why can't he just stop? Why do I have to change my name? Why do I have to go into hiding? Why do I have to become somebody else just for him to not do this? Lagemaat should have confronted Capuano on why SHE couldn't just stop. She didn't stop before calling ICE and having Patrick deported; she didn't stop before taking {G*****} away using lies and physical force; she didn't stop before going on international news and telling lies about Patrick; she didn't stop before filing these false charges against Patrick and sending him to jail for i2 and a half years. So why does she believe Patrick should have to stop but she shouldn't?
This would have further shown the jury that, again, Capuano believes she should be allowed to do to other people, but they should not be allowed to do to her.
QWell, you asked the public for $10,000 to do this. You must have --
AI got 900.
QWell, it doesn't matter what you got. It says what you were seeking -- you were seeking $10,000 to change your name and disappear with your son; right? Correct? You weren't going to leave your son with Patrick if you disappeared, were you?
AI didn't have any thoughts about hiding my son from Richard with that GoFundMe page.
QIs it correct that in your seek you said, "I need to hide all my public records to be able to move, change my name"? Is that correct?
AYes.
QAnd were you going to tell him, "But this is where Patrick -- this is Patrick's address and his new name"? Were you going to -- in -- in your -- if you got the $10,000, would -- were you intending on telling Patrick, "But -- but here's {G*****}'s new name and address"?
AI wasn't trying to get {G*****} a new -- I hadn't figured out how that was going to work. At that point, I was just scared. But again, scared of WHAT? At no point in the trial has Capuano articulated what she was afraid of, what she believed Patrick would do. Lagemaat should have confronted her on this. He should have pointed out that if all Patrick is doing is publishing the truth about her then isn't she really scared of herself, of her own actions?
Lagemaat should have also pointed out she created the GoFundMe page AFTER Patrick had been arrested and denied bail. So there was even less for her to be "scared" of.
QBut you said in direct evidence that you were never going to run and hide; correct? Then what was the money for, the $10,000, if you got it? We -- you don't know. For all you knew, you could have got the $10,000 in a couple days of GoFundMe because this was a high-profile case at that time.
AYou still have to ask people for help repeatedly to make your goals.
QBut for all you knew at the start --
AI knew I wasn't going to get $10,000.
QPardon me?
AI knew I wasn't going to get $10,000. I didn't care if I got a dime. That was put up as a request. Somebody requested that. I've never even considered doing that on my own.
QSomeone requested that you do it.
AYes.
QAnd you did it.
ASure. People wanted to help.
QSo you knew people wanted to give you money and you thought, "Sure, I'll take that money." Isn't it correct, Ms. Capuano, that you've been approached for movie rights for this?
ANo.
QNo?
ANo movie rights, no. As far as I know, there might be a documentary on proceedings, but not my life story, no.
QWell, I'm talking about not your life story but let's say --
AIt's not -- as far as I --
Q-- your life with Mr. Fox.
A-- understand, from what I've been told, it's not even about what happened to me with the harassment, it's just about the legal proceedings that happened. I don't know. I haven't actually been approached for rights on anything. At this point Lagemaat should have crossed Capuano on the publication ban on her identity and why exactly she explicitly requested the court vacate the ban. He should have suggested that really she just wants the attention from all of this; she wants her name and picture in the news, on the Internet, on the TV; and she wants the whole world to feel sorry for her and to give her their sympathy.
QIn your GoFundMe seek, why didn't you ask for money to take the website down?
AMoney is not going to take the website down.
QWell, no, I'm -- again, you're an IT person. Is there -- was there any way that website could have been taken down? I mean --
AIT is a very broad and general term for a lot of different things. Just because I work in IT doesn't mean that I understand how websites work.
QDo you -- do you know if someone has a website with child pornography, is it allowed to just continue on or is there, and I don't know, some governing body that would say, "Take that website down"?
AYes. Yes. And that governing body is apparently who I have to go through since he refuses to take it down by court order.
QAnd why didn't you ever go to --
AIt's a very long --
Q-- take this avenue?
A-- complicated process. At the point I was also in the process of trying to get the order of protection. I'm working on it.
QBut the $10,000 you were looking for was to go underground and hide and move, change your name, with your son, not -- not to --
AThe GoFundMe --
Q-- not to remedy the situation and try to take the website down; is that correct?
AGoFundMe does not allow you to put up a page if you're requesting money for a lawyer.
QWell, it wouldn't have been for a lawyer. This -- you could have had a lawyer do these things too, but you just said, "This is what I need the money for." You could have -- you wouldn't have had to say, "I need a lawyer to do this," could have said, "I need to get this website taken down"; correct?
ASure.
QI suggest --
ABut at the time my thought was hiding.
QWhat did you do with the $965?
AI paid my lawyer.
QSo you didn't do with it what you were -- what you said you were seeking it for; correct?
ANo.
QSo you lied. You said, "I need the money for this," and you didn't even do this or attempt to do this, what you were seeking. Lagemaat should have explicitly stated "So you defrauded the public. You knowingly mislead the public, exploited the compassion, the decency of total strangers, to get their money - and their pity. And then you took the money they gave you out of the goodness of their hearts and you used it for some other purpose. You committed a felony. Isn't that correct?"
AI was trying to get the order of protection. I had other immediate steps. And honestly, with the order of protection, my thought was first step to take the website down, so that's what the money went to. 2019-01-29 Affidavit of Patrick Fox, paragraph 66
Capuano falsely testified she used the money she received through GoFundMe to obtain the Arizona order of protection.
The proof of this being false is self-evident. Capuano applied for, and received the Arizona order of protection in July 2015. She created the GoFundMe campaign in June 2016 - immediately after Patrick was denied bail - a year AFTER she obtained the order of protection. Also, there is no cost to a complainant/plaintiff for obtaining an order of protection.
Both Mr. Lagemaat and Mr. Myhre knew Capuano had already obtained the order of protection, a year before starting the GoFundMe campaign, and that Capuano did not renew the order of protection when it expired in October 2016. Therefore they must have known Capuano was committing perjury when she testified. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano had committed perjury.
The money went to taking the website down, which is what you suggested I use it for.
QI -- I suggest, Ms. Capuano, this -- this was just another step in this very -- very nasty, intricate game you two were playing with each other where you had him deported, then now he's gone, "Now I'm going to try to get some money so I can disappear, then I've really won"; is that correct?
ANo.
MR. LAGEMAAT: My Lady, I'm -- I'm nearing the end of my cross-examination, and I think this might be a good time to break, and then I can spend some time with Mr. Fox, as we discussed yesterday. I'm actually potentially finished.
THE COURT: All right.
MR. LAGEMAAT: And I would suggest we break until two o'clock and I could go spend a significant amount of time with him and come back. And if -- if there's anything I can go further, I will.
THE COURT: All right. You do need that much time, do you, Mr. -- if you do, you do.
MR. LAGEMAAT: Well, I would need at least until 12:30. I expect Mr. Fox has some issues arising after sitting here for two days.
THE COURT: You'd prefer to come back at -- did you say 2:00?
MR. LAGEMAAT: I would prefer that, My Lady.
THE COURT: Prefer that over 1:30, say?
MR. LAGEMAAT: Well, I also need -- need to take a break.
THE COURT: I see. All right. Then that's what we'll do. Members of the jury, we'll take a longer lunch break today, and I'll ask you, please, to be back at two o'clock.
Mr. Myhre, is there anything from your perspective that would affect that schedule? Should we discuss this briefly before I give the jury their instructions?
MR. MYHRE: If we could, please.
THE COURT: Yes?
MR. MYHRE: Yes, please.
THE COURT: All right. Then, members of the jury, if you wouldn't mind just going to the jury room for a moment.
(JURY OUT)
THE COURT: Now, should Ms. Capuano be out of the courtroom while we have this discussion?
MR. MYHRE: I think that might be best, My Lady.
THE COURT: All right. Then --
MR. MYHRE: I agree, My Lady.
THE COURT: -- we'll stand down very briefly.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
MR. MYHRE: ... starting the procedure when we come back, after my friend has a chance to confer with Mr. Fox.
There actually is a little bit of case law on how to deal with potential disputes between s. 46.3 counsel and a self-represented accused, and so I wanted to take you -- Your Ladyship to that before we broke and just point out the relevant paragraphs, so that you could at least read a few paragraphs before we come back in.
Now, I understand that this situation arose in a case with Justice Harvey. It was in 2013. I can give you a case number, if you like, but the way they dealt with the matter was --
THE COURT: Do you have a copy of that?
MR. MYHRE: I -- there is no written decision actually, or I don't have one. I just was talking to a colleague who is actually dealing with an appeal of what happened there, but I don't have a copy of Justice Harvey's decision, because it doesn't really -- there was no formal order.
The way they dealt with it in court --
THE COURT: Which Justice Harvey was this, in New Westminster?
MR. MYHRE: It was in New Westminster. The way they dealt with it in court was after cross-examination the complainant was stood down, counsel conferred with the accused, and they came back into court and laid out the exact issues.
I think there were only two or three in which the accused wanted the complainant cross-examined and counsel wasn't willing to do that, and what ultimately happened at the end of that was the judge decided that the lines of questioning were irrelevant and so they weren't allowed, but it was it seems to me beneficial to at least put that on the record, so that if there is a review it is clear where the lines of dispute were, if there are any.
Now, there are two cases that I am aware of that deal with the responsibilities of s. 46.3 counsel and you have already seen one of them in the 46.3 application. I have another copy here. It's the Faulkner case.
And then there is another case called Thornton, and I have copies for Your Ladyship, for my friend and for Mr. Fox, and I will just refer Your Ladyship to a few paragraphs.
THE COURT: Thank you.
MR. MYHRE: Mr. Fox. No? Okay.
Sorry, I handed someone my little notes -- no, no, here they are.
So, My Lady, I am not going to take you to particular paragraphs right now, but I will just point them out. In the Thornton case it's paragraphs 58 and 59, and in the Faulkner case it's paragraph 35 that are relevant and -- and basically Thornton says appointed counsel shouldn't be putting any line of cross-examination to the complainant that's not admissible or unethical, whereas in Faulkner, as you saw, Justice Code states that this counsel would have the same obligations as retained counsel and therefore makes their own tactical decisions about a cross-examination.
THE COURT: All right. Mr. Fox?
THE ACCUSED: I'm -- I'm sorry, I'm not a hundred percent clear on what exactly the concern is here. I wonder if Mr. Myhre might enlighten me on that? Is this about a recording of that interview or --
THE COURT: No -- oh, do you mean to what it relates?
THE ACCUSED: What -- yeah.
THE COURT: The -- the concern expressed generally as --
THE ACCUSED: Oh, okay.
THE COURT: -- far as I understand is that there may when the cross -- when Mr. Lagemaat has finished cross-examination, there may be lines of cross- examination that you would like him to pursue that he determines are not appropriate to pursue; how do we deal with that, with this situation of counsel appointed by the court who is not counsel that you have retained.
MR. LAGEMAAT: Correct.
THE COURT: And Mr. Myhre is trying to alert me to this possibility, and equip me with the case authorities he has come across, that address this in some way.
THE ACCUSED: Okay. So we're just speaking in general, not about specific evidence? Okay.
THE COURT: At this point, yes.
MR. LAGEMAAT: And -- and that's one reason, My Lady, I requested the extra time. I want to make sure Mr. Fox fully understands what we're discussing here.
THE COURT: All right. Thank you.
MR. MYHRE: Now, could we also discuss just the logistics and witnesses, My Lady --
THE COURT: Yes.
MR. MYHRE: -- as far as proceeding?
In terms of not wasting the jury's time, I wonder if we could come back half an hour or 15 minutes before two o'clock to try to sort this out, in the hopes that we would be ready for the jury at two?
The other thing I anticipate happening this afternoon is I do have some re-examination, and I don't know if Your Ladyship would prefer to find out from me first, before I embark on it, what I intend to re-examine on or if you'd prefer to -- and if you do then we need a little bit of extra time for that, but that would have to happen after any cross-examination is finished.
I'm just alerting Your Ladyship to potential delays I see this afternoon.
So then following up on that, I can have Constable Potts here this afternoon and that is my intention, so that if we do finish before three o'clock we can at least keep going with Mr. Fox's statement to Constable Potts and get started on that.
That said, Constable Potts would be the only witness I have prepared for Friday, and so if we start Constable Potts this afternoon, if we get an hour of the statement in we'll finish it tomorrow morning, or we could break early this afternoon if we do finish early and then Constable Potts could be until about three o'clock tomorrow.
I don't think we have to -- well, we kind of do have to decide that now. I have to know if I should bring Constable Potts in.
THE COURT: Well, first of all, let's work out the first issue.
Mr. Lagemaat, Mr. Myhre is suggesting that we resume without the jury for 15 minutes to iron out some of these issues, but will that -- if we were to resume at quarter to two does that give you enough time?
MR. LAGEMAAT: The -- the only one concern I have, My Lady, is -- is if I do decide to embark on another line of cross-examination I haven't already, there's a potential issue if I have to print out materials. I have to go to my office if it's 18 copies of -- or 16 copies of materials, I will have to return to my office to do that. That's -- that's one concern I have.
Other than that, if at all possible I'm -- I'm fine with coming back early and starting without the jury for the last -- or the 15 minutes before two o'clock or 30 minutes, and if I need more time with Mr. Fox poten -- possibly we can get -- I -- I can't say how much time I'm going to need.
I haven't had this discussion with him yet, but we could potentially come back and get those matters done, and if I needed more time then I could go spend more time.
THE COURT: Or there might be some other way of getting printing done --
MR. LAGEMAAT: Yes.
THE COURT: -- more quickly. So 1:45 would work?
MR. LAGEMAAT: Yes. Yes, My Lady.
THE COURT: And then we'll ask the jury to come back at two?
MR. LAGEMAAT: Yes.
THE COURT: And should we have Constable Potts for the afternoon?
MR. LAGEMAAT: I think that is -- there is such a big unknown here of what is going to happen with Mr. Fox, so I can't really say and I -- that's -- I'm out after the cross-examination, so that would be an issue for Mr. Myhre and Mr. Fox.
THE COURT: I think it would be a good idea to have him here. It's quite possible that everything will wrap up very quickly with Ms. Capuano. That is one possibility, and we'll have sent the jury away for two hours.
It will be nice that there be something that they are coming back to, even if it means tomorrow they are sitting only part of a day, and we all know that when recordings are played and so forth of statements there can be technical problems that slow things down, and so I think we want to allow plenty of time for that.
MR. LAGEMAAT: Very good.
THE COURT: All right. Do I need to bring the jury back in or, Mr. Sheriff, would you be able to just ask them, please, to --
THE SHERIFF: I could ask them.
THE COURT: -- start their lunch, take a longer lunch, and come back at two?
THE SHERIFF: Yes. Yes, My Lady.
THE COURT: All right. Thank you. And is that everything?
MR. MYHRE: Yes.
THE COURT: All right. Then we'll be back at quarter to two. Thank you.
MR. MYHRE: Thank you, My Lady.
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
MR. LAGEMAAT: My Lady, I have no more than ten minutes of questioning to -- that's an estimate to finish my cross-examination and it's my understanding -- Mr. Fox will speak for himself -- but there are no issues arising that Mr. Fox wishes to -- me to examine on.
There's been no dispute is what I am trying to say so that I expect, unless Mr. Fox says something different, that will be the end of my cross-examination
THE COURT: All right. So it seems that at the end of the cross-examination we should probably stand down. I don't want to be canvassing this issue in front of the jury.
MR. LAGEMAAT: Is -- is My Lady saying do one last check after I finish my cross-examination, is that what you're --
THE COURT: Yes.
MR. LAGEMAAT: I -- that would be appropriate and I -- I expect that wouldn't take more than a couple of minutes, from our discussion we just had.
THE COURT: All right. And Mr. Myhre, you are expecting to have some re-examination.
MR. MYHRE: Yes, My Lady. I would estimate -- well, 20 minutes or so, but has Your Ladyship decided whether you'd like to know in advance the lines of questioning?
THE COURT: I think if you are estimating 20 minutes then the answer is yes, I would, please.
MR. MYHRE: I'm happy to.
THE COURT: All right. Unless you have discussed it with Mr. Lagemaat and -- no. Is there anything else we should discuss now?
MR. LAGEMAAT: I don't think so.
MR. MYHRE: No, My Lady.
THE COURT: I don't think we have the jury just yet, unless --
THE SHERIFF: Just hold on a second, My Lady. We can call them.
THE COURT: Then we need to stand down. They are ready?
We'll need to stand down so Ms. Capuano can come back into the courtroom, so we'll do that and then we will resume.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
(JURY IN)
DESIREE CAPUANO, recalled.
CROSS-EXAMINATION BY MR. LAGEMAAT, CONTINUING:
QMs. Capuano, I'd just like to clear up one thing. We discussed, before lunch, when I was going through the timeline of custody and court issues, November 7th, 2011, was a hearing. And I'm -- I -- I -- put the words in your mouth, I -- I said it was a jurisdictional issue, that he was returned -- or G. was returned to his father, and you agreed.
Isn't it true it was a little bit more than a jurisdictional issue, that there was actually a determination made on the merits at that hearing and, tell me if this is true, {G*****} was going to be returned to you because the court did not want him changing schools a couple months into the year, until it was learned that you in fact had just moved into a different catchment area anyways, so the judge said, "Well, if he's changing schools anyways, he might as well come back to Los Angeles and be with his father"; is that correct?
AThe judge determined that the home state of the child was California but was content to wait until a break to remove him from my custody, until he learned that we had just moved and, yes, he was not in school yet.
QSo it was decided on its merits. It was more than simply -- and isn't it also true that -- that the judge did not accept as true your allegation that Mr. Fox had hidden him away for nine years?
AThat wasn't discussed.
MR. MYHRE: My Lady, I'm just rising because my friend started a question and I'm not sure if it was a statement or a question. He said it was decided on the merits, and then seemed to move to another question.
MR. LAGEMAAT: So I'll go back.
QSo it was in fact a determination made on the merits, it wasn't simply a jurisdictional issue. It was a determination made on the merits and that it would not be -- or it was appropriate for him to start the school year a couple months in in Los Angeles; is that correct?
ANo, the jurisdiction issue was what was at the heart. The timing issue, that that -- that was the only caveat. It was just a matter of when he would be returned, not if. His -- his being -- the judge determining to return {G*****} to him was not due to me moving. The judge determined that {G*****} would be returned because California was determined to be the home state, not because I had just moved.
QBut there was discussion of him going back to Arizona --
AThe timing. The timing for him to be returned.
QThe timing. But it wasn't an appropriate time because it was two months into the school year; correct?
AYes.
QThank you. Back to the guns. You said when you received the PAL attached to an email that you were alarmed to learn that he had gun -- firearms and that was the first time you knew he had firearms; correct?
AIt was the first time I knew that he owned firearms or had the ability to purchase firearms.
QIsn't it true that you knew that sometime in 2000 or 2005, 2006, he was in Arizona with a firearm?
AHe had a gun but that wasn't -- you can get a firearm in Arizona without having a licence or legal permission to buy one. I thought the terms for that were a little bit different in Canada.
QBut you said in evidence that you were alarmed to find out that that was the first time -- you didn't know him to have guns before that. Is it --
AHis having guns scared me.
QThat's not the question I'm asking. I'm asking you --
AI don't know if he owned that firearm. I just knew that he was carrying it that day, and I only knew about that because my mother told me. I didn't see him with it. I didn't know if he owned it, I don't know if he purchased it, I don't know if he was carrying it for somebody, I don't know how long he had it in his possession, I don't know anything about it. Capuano seems to be trying to misdirect again. Probably because she can't remember what she had stated previously or in her RCMP interviews. Lagemaat should have notice that. He should have asked her what difference it makes whether Patrick is allowed to purchase them or just to possess them.
More so, if her fear is that Patrick is going to go to Arizona and shoot her, and it is so easy to acquire a firearm in Arizona, a firearm which would not have to be registered and could not be traced back to him, then why would she have any concern about legally acquired/possessed firearms in Canada which ARE properly registered and which the RCMP is fully aware of. Lagemaat should have confronted her on just how she could think that a fear derived from Patrick's legal ownership of registered firearms in Canada is in any way rational when she lives in an open carry state.
And, if she truly believed Patrick would shoot her, then what difference would it make if the guns were purchased and registered legally in Canada, or acquired illegally or covertly in Arizona? Again, this shows that her claimed fear was completely irrational and insincere.
All I know is that my mom saw him with a gun in a bar, lining up bullets on the table. 2019-01-29 Affidavit of Patrick Fox, paragraph 69
Capuano falsely testified that Patrick was in a bar in Arizona, with a firearm, lining up bullets on the bar.
However, Arizona law, at the time in question (2005 - 2007) prohibited bringing a firearm into an establishment which serves alcohol. Capuano has been making this same false claim, under oath, in various courts, since 2011 - even though it has been proven false each time. And although it has been proven false, Capuano continues to revive it whenever there is a new audience.
The proof that this statement is false is elementary. The Arizona law prohibiting bringing a firearm into an establishment which serves alcohol was well documented at the time (the law was later repealed in 2009, but was still active and enforced at the time of Capuano's claim). Also, Capuano had raised this same claim in her declarations in the family court and Patrick had responded as we have here. Based on that, the family court did not consider her claim credible. Therefore, Mr. Lagemaat and Mr. Myhre already knew, prior to trial, that this claim could not be true; that Capuano had already raised it, under oath, in prior proceedings only to have it determined to be false. However, neither Mr. Lagemaat nor Mr. Myhre attempted to inform the court or the jury that they had reason to believe that Capuano was committing perjury.
QSo it wasn't quite accurate to say that when you received the PAL, that was the first time you were aware that he had firearms; correct?
AIt was the first time I knew he ever was able to purchase them legally. 2019-01-29 Affidavit of Patrick Fox, paragraph 70
Capuano falsely testified that when Patrick emailed her a copy of his PAL was the first time she knew he was able to purchase firearms legally.
However, that testimony directly contradicts her prior testimony where she admitted that in Arizona there is no firearm registration or licensing, and that anybody can purchase a firearm without having to obtain “legal permission”.
  • TR 2017-06-15 p41/42-44
Therefore, since Capuano knew Patrick had lived in Arizona in 2000, 2001, 2006 - 2007, then at any of those times he would have been “able to purchase firearms legally”. Particularly since she admits to having knowledge of him possessing at least one firearm when he lived in Arizona in 2006/2007.
  • TR 2017-06-15 p42/6-13
Both Mr. Lagemaat and Mr. Myhre were present for all of Capuano's testimony. Therefore, they must have noticed her contradictory statements on this point. However, neither Mr. Lagemaat nor Mr. Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.
QOkay. Well, that's not what you said --
A-- [indiscernible/overlapping speakers].
Q-- in your evidence. But moving on, who's -- who's Virginia Tomlin [phonetic]?
THE COURT: Mr. Lagemaat, you need to address that by way of a question.
MR. LAGEMAAT: Okay. What was -- what was it, My Lady? I just said "moving on".
THE COURT: Before you said "moving on". I don't want to repeat it. If you're putting an inconsistency to her, you need to give her an opportunity to respond.
MR. LAGEMAAT: Okay.
QYou can respond to my last statement about the gun. Isn't it true that when you said in evidence that when you received his PAL was the first time you were aware he had firearms? Is that false?
AThat he owned firearms.
QSo now you're changing it to the first time you knew he owned firearms.
AHad firearms --
MR. MYHRE: My Lady --
ASorry. Wording.
MR. LAGEMAAT:
QOkay, so it's wording.
MR. MYHRE: -- I think it's important to be accurate about what was said in direct.
MR. LAGEMAAT: I'll move on.
QWho's Virginia Tomlin?
AVirginia Tomlin was an alias that I used when I was 19 years old because I did not want to be associated with my real name.
QSo Virginia, who's -- where did you get the name Virginia? Is that your middle name or ...?
AMy best friend grew up in Virginia.
QSo it's a fake name.
AYes, an alias used because the actions that I was -- at 18 years old, I did not want associated with my real name. So it was an alias, yes. Lagemaat should have pursued this further. He should have pointed out that she's here, in court, testifying that Patrick has used 4 or 5 fake names for nefarious purposes - though there's absolutely no evidence to support that claim - yet, she herself has not only used fake names, but she even went as far as to use fake names to deliberately deceive the police, the courts and the psych hospital where she had been committed under court order.
Yet one more example of Capuano falsely accusing Patrick of doing exactly what she was doing.
QYou said in cross-examination that being caught with the marijuana and arrested was the only time you broke the law, and then later we expanded on that, that it wasn't in fact the only time. Isn't it true that you also have an arrest as Virginia Tomlin?
AIt was also related to marijuana. It was public intoxication.
QBut it's not the marijuana incident we were talking about, is it?
AYou asked me if I had any charges related to anything under the marijuana. I said marijuana was the only reason I got in trouble, besides for the stripper. Public intoxication --
QWasn't it also --
A-- was for marijuana.
QSorry. Wasn't it also for using a false name --
ANo.
Q-- as Virginia Tomlin?
ANo, not at all.
QWas it for under the influence?
APublic intoxication.
QSo there's more than only the one time that you said earlier. There's actually three times; correct?
ATwo of them were for marijuana, which is what you asked.
QI don't think I asked that.
AOkay.
MR. LAGEMAAT: No further questions, My Lady.
THE COURT: All right. Members of the jury, we're going to stand down fairly briefly. It may be five or 10 minutes, something of that nature, please. If you wouldn't mind retiring to the jury room.
(JURY OUT)
THE COURT: And, Ms. Capuano, you'll need to leave the courtroom for that same period of time, so we'll stand down now.
(WITNESS STOOD DOWN)
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
THE COURT: ... do you need?
MR. LAGEMAAT: Like minutes -- five minutes. There's --
MR. MYHRE: Well, the good news is we have canvassed re-exam --
MR. LAGEMAAT: Yes.
MR. MYHRE: -- and there are no issues so that's [indiscernible].
THE COURT: All right. Then we'll stand down for another five minutes.
MR. LAGEMAAT: Thank you, My Lady.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
MR. LAGEMAAT: Yes, My Lady. There is one piece of evidence that Mr. Fox was hoping would go in through my cross-examination. I knew that all along.
It's -- it's a statement of the complainant and -- and I tried to impeach her on it several times, but she accepted it, and I never raised the statement and Mr. Fox will at this time make a submission on that piece of evidence.
THE COURT: Can I just, first of all, Mr. Lagemaat, ask you to tell me which statement?
MR. LAGEMAAT: It's -- Ms. Capuano made four statements to the police and it was the last statement she gave on Wednesday, July 13th, 2016, at 1323 hours to a Corporal B. Wilcott [phonetic], who I believe -- oh, yeah, Burnaby RCMP.
THE COURT: And what is it you say you cross-examined on and she accepted?
MR. LAGEMAAT: I had -- I had cross-examined her on a couple of things she said in the state -- the statement and -- and she accepted them, and if she didn't accept them I was going to put the statement to her, but I never had an opportunity to, because she -- there was a couple of areas I went into and she accepted them, so...
THE COURT: Can you remind me what they were?
MR. LAGEMAAT: I'm not sure if I can, My Lady. Just let -- let me have a quick look.
THE COURT: Was this today or yesterday?
MR. LAGEMAAT: One of them was where she took -- and -- and this was the main area, where -- where she -- Ms. Capuano took some pleasure in the fact that her tip to ICE had resulted in Mr. Fox being deported, and I asked her, "Did you take pleasure in that," and she agreed she had, and I said, "Isn't it true you actually wished you could be" -- these aren't the exact words, but "You wished you could be in the courtroom or the courthouse when they came and got him," and she accepted that, and I left it at that.
And again I -- I can tell My Lady that I was going to -- if she denied that, I was going to seek to play the audio of the statement and this is when Mr. Fox's submissions will be, from my understanding, because in the audio there is some laughing, which is even transcribed as brackets laughing.
And -- and that was the only reason I was going to try to play a part of that, a small portion of that statement, if she denied the fact that she was laughing and took enjoyment in the fact that her call resulted in Mr. Fox's deportation.
THE COURT: All right. I am just looking for my notes. I remember that portion of the cross-examination. Was there another portion?
MR. LAGEMAAT: No, My Lady, that -- that was it. Oh, and --
THE COURT: I think --
MR. LAGEMAAT: -- I apologize.
THE COURT: My note is that she said -- you asked her was she amused and she said she probably laughed, but not in amusement.
MR. LAGEMAAT: Mm-hmm. There -- there was one area -- other area, My Lady, and that was the last -- the second to last line of questioning about Mr. Fox previously having or owning firearms, and it was about her knowledge that in 2005 or 2006 he did have a firearm in Phoenix and she accepted that also, that that came from her mother, and that we got into a discussion whether it was owning or having and -- but that's -- if she had denied knowledge of that, I would have taken her to the statement.
And that's the two areas where I was -- would have referred to the statement, if she had not accepted what I put to her.
THE COURT: And the issue that may engage the question of your role as appointed counsel is whether there should be further cross-examination?
MR. LAGEMAAT: No, if I could interrupt --
THE COURT: All right.
MR. LAGEMAAT: -- there's no question about my role in cross-examination. That's -- we finished that.
Mr. Fox, and I believe he'll tell you this, has no -- no issues with my cross-examination. I'm only bringing this up because he is going to make a submission to you now about -- that he feels that statement as a whole should be entered, and I'm not sure what the basis of that submission will be, but he is going to make a submission and I don't believe he sees it as an issue with my cross-examination.
He just wants that statement in -- to be heard by the jury in its entirety and he -- he'll -- I expect he'll tell you why.
THE COURT: All right. Then Mr. Fox, I'll hear from you, please.
THE ACCUSED: Okay. In -- not the entire statement, the entire -- the entire recording is almost two hours, so it's the second hour of a -- of the recording.
There are frequent statements that Ms. Capuano makes as she is speaking with the RCMP where her demeanour and her overall character throughout the -- the statement is extremely contrary to what she is trying to present here in court today and what she has presented on the news media.
For example, when she was talking about the incident with punching herself in the stomach to try to cause a miscarriage, that she claims is not true, she's very somber when she speaks about that normally, but in this interview she's actually laughing and joking with the officer about it and talking about how she joked with {G*****} about it, as if it's all just a big game.
And I think that, given it's a criminal harassment case, not only fear for her safety is a -- well, an element of the offence, but the credibility of the complainant is at least in this case very, very significant.
For that reason and for the other comments that she makes in here, and the laughing and the joking, I think it is critical for the jury to be able to see what she really thinks of these issues outside, when there is no cameras on her and when a jury is not looking at her. There's also a statement that she makes at --
THE COURT: Now, just before you go on --
THE ACCUSED: I'm sorry.
THE COURT: -- -- you say where -- when there are no cameras on her.
THE ACCUSED: Oh, meaning the news media.
THE COURT: But there were -- usually the RCMP will have a video camera.
THE ACCUSED: This one was just audio recorded and also this was conducted in her home.
THE COURT: All right.
THE ACCUSED: The -- the other interviews that she had done with the RCMP, one was done from her attorney's office -- I'm not sure where the others were done from, but they were all done on the telephone.
There is another point in -- in this interview where she openly admits that -- well, first she says that she has proposed to me numerous times, that if I would just take the website down then everything could go back to normal, and then she goes on to say that she has no resentment and if I would just stop then {G*****} would continue coming or go back to coming out here for visitation, which seems to me a very clear admission that she is blatantly using {G*****} to try to get me to take down the website or engage in any other type of conduct.
Now, that of course doesn't have anything to do with the laughing and joking, but I thought it was quite important that that should be brought up.
THE COURT: Can you tell me a bit more about why -- I think there are two issues I need to deal with here. It does seem to me that particularly -- particularly that last point is something in which it's your wish that there be cross-examination on that and Mr. Lagemaat has not cross-examined on that.
THE ACCUSED: I -- I would agree with that, but I wouldn't say that I think that Mr. Lagemaat was deficient in that respect at all. This was something that I myself just noticed very recently and so perhaps it just fell through the cracks.
THE COURT: Well, perhaps one reason that it may not have been picked up is that it doesn't seem -- and I'll hear from you further, but it doesn't seem to me to go the issues that the jury needs to decide.
The issue in this trial is not whether Ms. Capuano was using {G*****} as a pawn inappropriately. The issue is did the website and the other communications amount to criminal harassment, and it's quite possible that both could have coexisted, that she in theory could have used {G*****} as a pawn and the website could have resulted in criminal harassment. They're -- what I am trying to say is they're separate issues.
THE ACCUSED: Sure.
THE COURT: So I am having trouble seeing how that would be relevant to the issues in this trial.
THE ACCUSED: Okay. I should have explained -- or I should have mentioned also that this is one of the claims that Ms. Capuano has made against me repeatedly, I'm not sure if she did while she was on the stand testifying though, that I have been trying to use {G*****} against her and using him as a pawn.
So I thought that this might be another example of how she is repeatedly accusing me of doing the things that she is actually doing to me, and meanwhile there is no evidence that I'm actually doing any of the stuff that she's claiming.
So that -- that was one of the reasons I thought that that might be significant, but certainly the most important aspect I think of this recording is her overall demeanour as she is going through and explaining the -- we're talking about the very things that while she's on the stand she was reduced to tears and getting very emotional and choked up about, yet when she doesn't believe people are watching her she is only laughing and joking, like I said there's really nothing to it.
THE COURT: All right. Thank you. Now, doesn't that engage the question of what you would like Mr. Lagemaat to cross-examine on?
THE ACCUSED: Well, I believe Mr. Lagemaat's position on it was that he could only have it admitted if there was a prior conflicting statement, but what I'm hoping to argue here or to persuade the court of is that it's more a question of her demeanour and her mindset, as she was making these statements, as opposed to whether or not they conflict with what she is verbalizing on the stand now.
THE COURT: All right. Thank you.
THE ACCUSED: I should also mention, though, that rather than making a decision about proceeding with allowing it before the jury, at this point I would probably request that the court listen to it first and then make a decision, or at least listen to some of the more [indiscernible] parts.
THE COURT: Mr. Lagemaat, it seems to me that in a sense Mr. Fox is saying that there's more inconsistency in the statement than you cross- examined on.
MR. LAGEMAAT: He is saying there is inconsistency in her demeanour, between her demeanour at the time of the statement and her demeanour here today, and I would not have chosen that line of cross- examination and I have listened to the recording many times.
THE COURT: All right. I am going to ask you to clarify. Is it your understanding that the law would permit you to cross-examine on essentially inconsistent demeanours at different times --
MR. LAGEMAAT: If -- if I was going to cross-examine on it I would have done what I did with the -- her fly on the wall comment. I would have said did you find that amusing, that he had been deported, which is what I did, and did you laugh, and she agreed, not in precisely those words, and that's how I would have done it and -- and in my view that was the most significant example in the statement of her taking it lightly and I did go to that.
THE COURT: Thank you. Mr. Myhre, do you have anything to contribute?
MR. MYHRE: Yes, and on the point of cross-examining her on her demeanour during the statement it seems to me as a general proposition that certainly could be relevant, but the further those purported times of amusement are from the issues that we're dealing with the less relevant they get, and so if -- my submission would be that if the only example is Ms. Capuano laughing it sounds like about how ridiculous the notion that she was punching herself in the stomach was, we're just so far removed from the time and the issues of this trial that it's -- it just has no relevance. If we're talking about things like --
THE COURT: I think another area of concern for Mr. Fox was --
MR. MYHRE: Her -- Ms. Capuano using {G*****}.
THE COURT: Yes, and the business about laughing if she had the opportunity to see him removed from the country.
MR. MYHRE: As I say I -- I think that would be proper to put to her in -- in either format. There's nothing improper about that. That's -- that's one of the turning points in this -- the whole --
THE COURT: I think we're struggling a little bit with what the issues are, Mr. Fox. You -- you've said that in -- Ms. Capuano in the police statement was talking about things that had -- that reduced her to tears in this courtroom, but seemingly caused her to laugh when she was speaking with police officers. What kinds of things?
THE ACCUSED: I'm sorry, may I just -- one moment.
Do you have that list that I gave you with the timing positions where various [indiscernible/2:48:20 PM].
Another -- another thing that I think is very relevant or very interesting about this interview, My Lady, is --
THE COURT: Well, can we just deal with this one question first?
THE ACCUSED: Oh, sure, yes, I'm sorry. Oh, no, when I gave you the transcript of it, it was -- it had highlights in yellow.
MR. LAGEMAAT: I -- I gave you that transcript back.
THE ACCUSED: Yeah. I gave you the transcript [indiscernible].
MR. LAGEMAAT: I've given -- I gave you the entire transcript.
THE ACCUSED: Okay. Well, I'll start with this. So an example then would be where she talks about wishing that she could have been in the courthouse and what she says is that -- oh, I have it here -- "And I called the FBI agent that morning," and then it says chuckles here, but actually it was much more than chuckles. "I wish I was a fly on the wall," and then she laughs some more.
Down below on the same page, she laughs through an entire section here and says [as read in]:
So if you can picture it, there was Richard at the courthouse arguing with him, demanding that his hearing is supposed to happen and trying to figure out why it's not scheduled, knowing that he's there illegally and the FBI walking in and arresting him.
There's another part where she's also laughing about the scars that she has, from having to deal with me over the years, and then the officer joins in at that time and starts laughing with her.
And I apologize, I wish I had more organized notes on this at this point. Then when she is talking about the allegations of the LinkedIn profile, she says [as read in]:
Um, but you might not want -- you might not want to put up on your LinkedIn profile that you're a stripper --
I guess she's referring to what other people were saying to her.
-- and I said I don't -- I don't -- what you're talking about. She said your LinkedIn profile it says you're a stripper and you smoke pot and I'm not, she says.
[Indiscernible]. Now, as she was saying that she was also laughing as well, but there I have the notes.
Now, there is a point in the interview as well, where she is talking about getting the order of protection in Arizona, and the Arizona order of protection is supposed to be based on solely a person's credible fear for their safety from the other party, and she admits in this interview very likely that her only goal with that was to try to get the website taken down and it had nothing at all to do with her safety. She did make a brief reference to that in her testimony.
And there is one point where she's laughing and then immediately moments later crying -- or no, sorry, she was crying about the quote unquote "sick people that would read the website and potentially harm her children," and then she immediately goes into laughing about something which is unknown, even hard to tell what she is saying on the recording, and she also laughs and makes jokes about how it is that I seemed to frequently know more about her legal proceedings than she did, I would often know about coming hearings before she did.
So on the one hand here in court she's -- she's claiming before the jury that that was very frightening for her, that I was able to know that before she did even, but then in this recording she's laughing and joking about it.
Oh, yes, and she also finds it very, very funny that the family court in California kept delaying my petition for the child support, and she makes a number of jokes about that and laughs about that as well.
And those were -- those were the ones that I wrote down on here, the ones that I wanted to bring up in the 486 hearing.
THE COURT: And you're saying you would like Mr. Lagemaat to cross-examine on each of those points, because some of them he didn't touch on.
THE ACCUSED: If people with much more knowledge and experience than myself, such as the attorneys and yourself, believe that those are areas that should be cross-examined then I would definitely like that to happen as well, but I -- I think that the most important thing that I would hope to get from this would be for the members of the jury to see how Ms. Capuano is when they’re not sitting there looking at her, in other words how the real Ms. Capuano is.
THE COURT: All right. Thank you.
THE ACCUSED: But may I just point out one other thing that I would hope to show the jury with this is the frequency and the quickness with which Ms. Capuano can transition from crying about one thing at one moment -- I mean literally crying -- to laughing almost hysterically about something a few moments later and then going right back to crying again, which I think really goes to her credibility.
When they see this or when they hear this, it's very clear that there is not a lot of sincerity to the emotions that she is expressing, so then I think projected that onto the testimony she provided here and question whether there is really any sincerity to what she is demonstrating in court. Thank you.
THE COURT: Thank you. Mr. Lagemaat, now that you have heard that spelled out in some detail what is your suggestion?
MR. LAGEMAAT: Well, I will repeat that I ran the cross-examination the way I would have run the cross-examination. I am appointed by the court and if the court orders me to bring up these lines of cross-examination I will.
I have the statement on my computer. I believe we have sound equipment here. The only -- the only time -- it would take a little bit of time to get to the remarks, but Mr. Fox has them marked down quite accurately where they are --
THE COURT: Yes.
MR. LAGEMAAT: -- because I have already looked them up on the -- on the audio. They are quite easy to find.
THE COURT: All right. Thank you.
Mr. Myhre -- and I do have a question for both Mr. Myhre and Mr. Lagemaat.
MR. MYHRE: It seems to me most of that is -- it's not irrelevant.
THE COURT: Not irrelevant?
MR. MYHRE: And -- it's not irrelevant and so -- so if Mr. Lagemaat is willing to do it, even though he might not have done it that way, I am not opposed.
THE COURT: So I'd like to raise a question for you to consider, and it comes from something Mr. Fox said. He asked essentially for the court's advice on whether these additional areas should be introduced through cross-examination or not.
I can say that I have reviewed the two cases Mr. Myhre gave me, R. v. Thornton and R. v. Faulkner, and I have come to the view that I would share with Justice Gray in Thornton the view that counsel appointed under s. 486.3 is not in a solicitor-client relationship with the accused in the way that defence counsel is, but is subject to ethical duties that may be very similar to those that retained counsel bears, and of course is subject to the requirement that a cross- examination be on relevant points and -- and confirm in the various other ways with the rules of evidence.
However, ultimately it is my view, as it is the view of Justice Gray, that where an accused person is self-represented in the trial it's the accused person's decision that governs concerning the lines of inquiry to be pursued in the cross- examination, subject to the ethical duties on counsel who is conducting the cross-examination and the rules of evidence.
And I reach that view because appointed counsel is not defence counsel, is not appointed for the benefit of the accused person, but rather is appointed to protect potentially vulnerable witnesses from being cross-examined by the very person against whom they have made allegations.
So it is a measure to protect potentially vulnerable witnesses, not to restrict the accused person's right to present the case in the way that he wishes to put it before the court.
That is my view concerning the role of appointed counsel, but there is an additional factor to be considered, and that is the role of the court in ensuring that Mr. Fox has a fair trial as a self-represented person and that his own decisions about the course of his defence don't cause him to -- particularly where he has sought the advice of the court to -- I won't say lead himself into error, but to make a very bad strategic decision.
It is clearly Mr. Lagemaat's view that the various lines of cross-examination Mr. Fox spoke of were either not proper or were strategically dis -- not -- not of advantage to Mr. Fox.
So can counsel assist me on the question of to what extent there is a duty on the court to consider the -- the potential strategic advantages and disadvantages of this line of cross- examination?
MR. LAGEMAAT: I haven't reviewed the cases in depth, but it would be my submission that once the 486 appointee, me, has said they've completed their cross-examination, it could be the court's role to order to continue on and I believe the case said if you feel it's relevant and yes, he -- Mr. Fox does have a right to have those lines if -- if -- for his fair trial to have the line of cross- examination he would have taken if he was self- represented heard, if it's relevant.
THE COURT: Does the court have an obligation to, for example, listen to this audio recording and make an assessment of whether cross-examining on it would assist Mr. Fox or not?
MR. LAGEMAAT: I would think that would be the only way he could do it, rather than us just summarize it, this is what it says.
Mr. Fox is looking for the demeanour. I would think that would be the only way the court could make that determination is by listening to it.
THE COURT: But I mean I, the judge, not the jury.
MR. LAGEMAAT: Yes. Yes, you the judge, to make a determination on whether it's relevant and you go a step further and order counsel to cross-examine on it, because it is demeanour Mr. Fox is seeking to get at, which isn't -- I mean there is in brackets laughing, but I've listened to it and you don't get it out of the transcript quite as much.
THE COURT: All right. Thank you. Mr. Myhre?
MR. MYHRE: My Lady, I think that is a dangerous area for the court to go into, because you do not have all the context that counsel do, both myself and appointed counsel.
Obviously I am not giving any advice and I think it would just be dangerous to give strategic advice to Mr. Fox, when you don't have everything.
I would think the most appropriate course of action would be to encourage Mr. Fox to rely on counsel, but after that, short of trying to introduce improper or irrelevant evidence, I would say it's up to him.
One question I would have is I -- I'm not sure how I would get this in, if she accepts that she was laughing and taking it lightly, as she did on the most significant -- what I will say is the most significant one, the being the fly on the wall and laughing, she accepted that she wished she was there and so it would be my concern -- also how I would get this in if she accepts it that Mr. Fox has one, two, three, four -- nine clips here, none of them are more than from my estimation a minute.
THE COURT: Mr. Fox?
THE ACCUSED: To clarify, though, there's nine clips on there, but those were just the ones that I thought at the time of the 486.3 hearing would be the most important ones to bring to your attention.
There is actually a lot more through that 45 minute to one hour stretch of the audio and there are many points and in fact, if we want to hear how we frequently moves from laughing to crying and back and forth so much, then it would be a matter of simply playing the eight or nine clips that are referred on there.
THE COURT: All right. Generally, Mr. Fox, we don't play -- there are some exceptions where a very different use is made of previous statements, but generally we don't play recordings of witnesses giving interviews.
I have your point that you wish Ms. Capuano to be cross-examined on her basically ability to turn the tears on and off -- I am paraphrasing -- and to quickly change emotions and to apparently be a lot more lighthearted in talking about things that here are apparently causing her much more concern. That's -- that's your position. I don't know. I haven't heard this audio recording.
Mr. Lagemaat is a very experienced lawyer. He tells the court that he has listened to this audio recording several times, and that in his professional view it is not suitable to cross- examine further on those kinds of topics, but ultimately it is your call, Mr. Fox, and if you wish there to be some further cross-examination there will be, and I will ask Mr. Lagemaat to conduct it on your behalf, but you need to be aware of several things.
One is that you could be making an unwise decision. It's possible that what to you sounds like making light of things by laughing is nervous laughter, or is the kind of laughter stimulated by strong emotion that has nothing to do with finding something funny, and the strong emotion could be fear.
So there is a danger that further examination -- cross-examination on these points could backfire for your case, and in fact there is even a little bit of a basis in something Ms. Capuano has said already, which was when she was being cross-examined about laughing she said that it wasn't amusement that was causing her to laugh, she was scared, something along those lines. So there is the germ of that idea there and you would run the risk that further cross-examination would just solidify that.
I should also tell you that further cross- examination would be restricted by the rules of evidence. It would almost certainly not be permitted for Mr. Lagemaat to just start the tape and run it.
If he were to, for example, suggest to Ms. Capuano that on repeated occasions she laughed and in fact she went quickly from laughing to crying and back to laughing, and she did this, you know, 15, 20 times, whatever it is, if she agrees that's the end of it. The tape doesn't get played.
It's only if she says, oh no, that wasn't what happened that then the tape could be played to show that that is in fact what happened. So we're not going to be in a situation where we start at the beginning of the tape and play it for an hour, or the second half, or whatever it is that most interests you.
I think what we're going to do is we're going to take a short afternoon break, about ten minutes. I am going to encourage you to think a little bit more about these questions. If you wish Mr. Lagemaat to pursue them in further cross- examination, then he will do so, so long as they are relevant to the issues in the trial.
And there are some of the issues you mentioned that probably are not relevant, at least the substance -- for example the premature birth, what actually happened is not going to be relevant. Perhaps the changes of emotions while she talked about that may be relevant.
So do you have something you wish to ask me, Mr. Fox?
THE ACCUSED: No, no, My Lady.
THE COURT: Anything further to say at this point? Otherwise I think we'll take ten minutes and you can think it over some more.
THE ACCUSED: Yes, ten minutes sounds great. I am wondering, though, if I might be able to confer with Mr. Lagemaat during that time?
MR. LAGEMAAT: Of course.
THE COURT: Yes.
THE ACCUSED: Okay.
THE COURT: Mr. Myhre, anything further?
MR. MYHRE: My Lady, counsel and Mr. Fox and I had discussed the potential re-exam and there was one issue that came up about the authenticity of an email. It was agreed amongst all of us that it would be okay to ask Ms. Capuano if she has that email, so I am just asking the courts leave to ask her about that specific thing over the break, do you have the specific email we discussed.
THE COURT: Do you agree?
MR. LAGEMAAT: That is the agreement we came to, My Lady.
THE COURT: All right. Do I need to tell Ms. Capuano that?
MR. LAGEMAAT: I think you can rely on me as officer of the court, My Lady.
THE COURT: I'm not worried about my relying on you, but as long as she will accept that --
MR. LAGEMAAT: If she tried to broach anything I would shut it down, My Lady.
THE COURT: No, I want her to be confident that she is permitted to speak to you about that.
MR. LAGEMAAT: I see. Pardon me.
THE COURT: You can advise her that you have been permission by the court.
MR. LAGEMAAT: Thank you.
THE COURT: All right. Thank you. We'll stand down.
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
MR. LAGEMAAT: Mr. Fox has decided and you can confirm this with him, that there is nine files he intends to have questioning on five of them, and we are all ready to go. It won't take up much of the court's time and none of them are more than one minute.
THE COURT: All right. So we're all set to go essentially?
MR. LAGEMAAT: We're all set to go, My Lady.
THE COURT: All right. Mr. Myhre, you're nodding. Mr. Fox, you're agreed?
THE ACCUSED: Yes.
THE COURT: All right. Please.
(JURY IN)
THE COURT: Thank you. Thank you for your patience, members of the jury. There's going to be some further questions.
DESIREE CAPUANO, recalled.
CROSS-EXAMINATION BY MR. LAGEMAAT, CONTINUING:
QMs. Capuano, we talked in -- you talked in direct evidence that Mr. Fox had accused you of punching yourself in the stomach when you were pregnant in an attempt to miscarry. Do you recall that conversation?
AYes.
QDid you find this allegation amusing?
AYes.
QAnd it makes you laugh?
AIt's ridiculous, yes.
QYou find it funny.
AThe miscarriage was not funny but the fact that I would punch myself in the stomach to try to abort my child, yes. What's disturbing is that he told our child that.
QIt was disturbing or funny?
AIt was disturbing that he told our child. It's funny to me.
QSo you find it funny.
AThat that's his belief, yes. He was sitting right there, he -- he was there with me that day and it's completely ridiculous.
QYou're laughing now.
AYeah.
QDo you recall giving a statement to Constable -- or Corporal Wilcott of the Burnaby RCMP?
AYes.
QAnd, sorry, but that was on July 13th, 2016. How was that statement taken? Did -- did he go down to Arizona?
AYes.
QAnd he attended at your residence? No, at the police station.
QAt the police station. And you recall giving that statement; correct?
AYes.
QDo you recall laughing about the allegation that you'd punched yourself in the stomach?
AI probably did.
QYou probably did or you did?
AI probably -- I don't remember.
QYou don't remember?
AIt was a three-hour interview.
QSo you don't know if you laughed about it.
AI don't.
QI'm going to suggest to you you did.
AAnd that's why I said probably.
QBut you don't know.
ANo. I haven't listened to the interview and I haven't listened to it since I gave the interview. I don't remember exactly what points --
QI'm -- I'm going to play a clip of the interview to you at this time.
AYes.
MR. LAGEMAAT: And you can confirm whether you find this allegation funny or you're laughing about it.
(AUDIO BEING PLAYED)
(AUDIO STOPPED)
MR. LAGEMAAT:
QWould you now agree that you were laughing about it in the statement you gave to Corporal Wilcott?
AI agree that the terms "funny" and "laughing" can be done in various different ways. When you go see a circus act, you can laugh because a juggler's funny, but if you fall down and hurt your elbow you can also laugh.
QReally?
AIf you hit your funny bone, sure. I've laughed because of pain before. Everybody's --
QSo you were laughing --
A-- different.
Q-- there because -- sorry. I'm sorry to interrupt. Continue.
AAll I'm saying is that not every laugh is a comical laugh, not every funny is a ha ha comical funny. Some of them are ridiculous, some of them are ludicrous, some of them are sarcastic, some of them are ironic, some of them are ha ha funny. That was not a ha ha funny, but it's ridiculous. It's ridiculous that that would be the story that my son would believe --
QBut -- but --
A-- or know. But, yes, I did laugh.
QBut you were comparing it to falling down -- or hurting your elbow, that laugh?
ANo, that's not what I said at all.
QSo why were you laughing?
ABecause it's ridiculous. Same reason I said in the recording.
QOkay. Do you in any way find it funny that quite often during this time, and you've made this allegation, that -- or tell me first, quite often during this period did Mr. Fox know things about you before you knew them? And I'm talking about legal issues.
AYes.
QAnd did you find that funny?
ANo, I found that scary. Like during the time of that happening, that was during court proceedings. The website hadn't come up, the harassment hadn't really started yet, so really it was just a lot of custody battles and emails back and forth. So I thought it was creepy that he would be researching and paying to get information on me before I would even know about it. But at the time it was not -- I was not trying to say that there was harassment or a fear for my life.
QWell, at the time, in hindsight, do you find it funny that he knew things before you knew them --
ANo.
Q-- about you? You don't find it funny. Do you recall giving the statement, the same one on July 13th, to Corporal Wilcott at the police station in -- or Arizona?
AYes.
QAnd were you laughing when you were talking about him knowing more than you --
AMy laughing is a --
Q-- or sooner than you?
AMy laughing is a coping mechanism in a lot of cases. If I don't maintain some sense of --
QI --
A-- sanity through this --
QI asked you -- -- then I would lose my mind. And so a lot of times I will laugh in -- so that I don't cry.
QI asked you if you were laughing.
AI don't remember, but I assume that you have the clip so we can find out. I would assume that yes.
QSo you don't know if you were laughing at the time.
AI don't remember everything that I laughed at during this interview.
MR. MYHRE: My Lady, my friend has already established that she doesn't remember giving this statement. There's no utility in asking her whether or not she remembers every time.
MR. LAGEMAAT: I'm going to play for you a clip, Ms. Capuano. Sorry, it's a little bit hard to get on the precise seconds and I've got to play it up to that portion.
(AUDIO BEING PLAYED)
(AUDIO STOPPED)
AYeah, I was about to cry.
MR. LAGEMAAT:
QWould you agree with -- pardon me?
AI was about to cry, so I laughed instead.
QThat was about to cry?
AThat was me about to cry, and so I laughed instead. That's the way I go on.
QDo you think it's funny, in hindsight, the fact that you are able to represent yourself in family court and win?
AI think that it was ironic that I had spent a lot of money on lawyers and gotten nowhere in my case until I took over. I think that's ironic, yeah.
QIronic or funny?
AThey can be construed as the same.
QDo you recall giving the -- I've asked you, the statement, and we're going to talk about the same statement, Corporal Wilcott. Do you recall talking about being able to represent yourself in court, family court, and winning, and laughing about the -- the court deferring a child support request? Do you recall laughing about that?
AI don't remember it being said like that.
MR. LAGEMAAT: Again I'm going to play a clip to you, Ms. Capuano, and it will just take a second to get to it, or 30 seconds.
(AUDIO BEING PLAYED)
(AUDIO STOPPED)
MR. LAGEMAAT:
QWould you agree with me you were laughing about what happened in court, you won and the child support being deferred?
ANo.
QYou would not --
AI don't agree with that.
Q-- agree you were laughing.
AI don't agree that I was laughing because I was not assigned child support, no. That's not what that meant at all.
QWhat were you laughing about?
AThe laugh wasn't a laugh because the situation was funny, the laugh was in exasperation again. This has been really hard. The laughing is a coping mechanism.
QHave you laughed at all here the last three days?
AYes. You just called me on it. Lagemaat should have pursued this further. Her statement was false - there was no point in her testimony where she laughed. He also should have pointed out that while, at numerous times, she SOUNDED like she was crying while testifying, she did not once shed a tear. Never once required a tissue to dry her eyes.
He did point that out in his closing arguments, but he should have confronted Capuano on it, to show that her appearance of crying was just an act. She was not actually crying. She was just pretending to cry.
QDid you find it funny, Ms. Capuano, when your coworkers would approach you, knowing that you had said on LinkedIn -- or a LinkedIn profile in your name had said that you were a stripper? Did you find that funny?
ANo.
QAnd in the same statement with Corporal Wilcott at the police station, did you laugh about that?
AProbably, yes. And I think that that proves my point. Anybody in a work situation, if they're -- come out with their colleagues and their colleagues tell them that they saw a LinkedIn profile that says they're a stripper, I don't think that anybody would find that comically funny.
QBut why would they laugh, then?
AIt's in coping. If I don't laugh about some of these things, if I don't, then I cry.
QBut you don't recall if you laughed, is that correct, in -- with Corporal Wilcott?
AI can't guarantee you that that's one of the moments. I don't remember --
QYes.
A-- every time. And my laugh is not a ha ha ha, it's a "I can't believe I made it through this. I can't believe I made it through another one of these things." Capuano is being melodramatic again. Lagemaat should have crossed her on why or what was so traumatic that she would think to herself "she can't believe she make it through another one of these things".
QI'm going to play a short clip for you, Ms. Capuano.
ASure.
(AUDIO BEING PLAYED)
(AUDIO STOPPED)
MR. LAGEMAAT:
QWould you agree with me, Ms. Capuano, that you were laughing there?
ANot laughing at the situation, but I did in telling Wilcott about it. Trying to get through the story is hard.
QSo -- so you're saying that that wasn't genuine laughing in any of these clips.
ANo.
QSorry, I'm just getting to the last one. One minute, please.
I think, from all of this evidence you've gone through, and you're just about finished, would you say that you were left with some scars from this whole experience?
AYes. It's still happening.
QAnd do you find it humorous at all that you've been left with scars from all of this?
ANo, but I do have pride in myself for my strength and my resiliency.
QI'm going to play a short clip for you, Ms. Capuano, in a second here. And -- and, sorry, this again you recall giving the statement to Corporal Wilcott --
AYes.
Q-- in Phoenix in the police station.
ATucson.
MR. LAGEMAAT: Tucson.
(AUDIO BEING PLAYED)
(AUDIO STOPPED)
MR. LAGEMAAT:
QWould you agree with me, Ms. Capuano, you were laughing in that clip?
AYes, I was.
QBut now you're crying.
AThat was what the laugh was to prevent.
QWhat would -- what would have been wrong with crying there? Why can you cry here but --
AI'd already cried.
Q-- not there?
AI was just trying to get through the story. We still had years to go through. I couldn't break down that stuff.
QWhy not?
ABecause I was trying to get through the story.
QIsn't that what we're doing here?
AYeah.
MR. LAGEMAAT: No more questions.
MR. MYHRE: My Lady, if there's any chance we could do re-exam, I think I'll be about 10 minutes. And if we're longer than that, I promise I will just stop.
THE COURT: Members of the jury, is there anyone who will have difficulty staying for another 10 minutes?
RE-EXAMINATION BY MR. MYHRE:
QMs. Capuano, I'm just going to show you a document here. And, My Lady, pardon me, I only have one copy of this document, so I'm going to ask the question from right here, if that's okay.
Ms. Capuano, if you flip through these, it just looks like emails between yourself and -- and Richard, some that we've -- in fact all of them that we've gone through already.
AYes.
MR. MYHRE: So, members of the jury, I'm going to refer Ms. Capuano to some of the emails that my friend referred her to in the binder.
QAnd so, Ms. Capuano, can I see that document? The first email I'm showing you is dated January 21st, 2014, at 8:34 p.m., and it's titled "On the topic of love"?
AYes.
QThe original email in that chain, so the first one that came from -- from Patrick Fox at 8:34 p.m., was {G*****} cc'd on that?
AYes.
QAnd so just for the record, I'm showing you a document. Does that refresh your memory about whether {G*****} was on that chain?
AYes. {G*****} was only CC'd on the first email in that chain - not in the other 8.
QThe next document I'm showing you is an email titled "Telephone call", dated December 17th, 2014, at 8:30 p.m.
AYes.
THE COURT: Can you give us a clue where we find this, please?
MR. MYHRE: So it's titled "Telephone call" and it's dated December 17th, 2014.
THE COURT: All right.
MR. MYHRE: And I'm looking at the originating email in that chain.
THE COURT: Members of the jury, it's about what I've numbered the eighth page in the defence binder, Exhibit 2. In Exhibit 2, it's about page 8.
MR. MYHRE:
QMs. Capuano, having looked at this copy of what looks like that email, does that refresh your memory about whether {G*****} was cc's on the original chain?
AYes. {G*****} was only CC'd on 3 of the 7 messages in that chain.
QAnd was he?
AYes.
QThe next email I'm showing you is dated January 15th, 2015. It's titled "A little test".
AYes.
QAnd I'm showing you what appears to be the original email in the chain from Patrick Fox at 9:44 p.m. on January 15th, 2015. Having looked at this document, do you remember now if {G*****} was cc'd on this first email?
AHe was included, yes.
QMoving on to an email dated January the 11th, 2015, titled "Your loving home and parental teaching and guidance".
AYes.
QI'm showing you what appears to be the originating email in that chain, from Patrick Fox at 9:04 a.m. Was {G*****} cc'd on the originating email?
AYes.
QIn that same chain there was -- the next email in the chain is dated January the 11th, 2015, at 10:20 a.m. It just followed -- I think, in the -- in the defence book it just followed right on top of the first one.
AYes.
QThere are two emails in a row from -- from Patrick Fox. Was {G*****} cc'd on the second one?
AI believe so, yes.
QMoving ahead to an email January 26th, 2015, titled "Your talk with {G*****}".
AYes.
QI'm showing you what appears to be the originating email in that chain, from Patrick Fox at 10:03 p.m. on January 26th, 2015. Having looked at this document, can you tell us whether {G*****} was cc'd on that first email?
AYes.
QMoving ahead to an email titled "Your belief in my motives", dated February the 8th, 2015. I'm showing you what appears to be about the third email in the chain.
AYes.
QWas {G*****} cc'd on the third email in that chain?
AYes.
QAnd that was an email from Patrick Fox to you dated February the 8th, 2015, at 10:08 a.m.
AYes.
QLastly, showing you an email from May 7th, 2015, titled "More of what I know".
AYes.
QAnd I'm showing you the originating email on that chain, May 7th, 2015, at 1:07 p.m., from Patrick Fox to you. Can you tell us whether {G*****} was cc'd on that email?
AYes.
QMs. Capuano, I'm showing you a document. Could you just take a quick look at that and tell me whether you recognize it.
MR. MYHRE: There's a copy for Your Ladyship.
THE COURT: Thank you.
MR. MYHRE:
QMs. Capuano, do you recognize this document?
AYes.
QAnd this is an email from Richard that came to you in the middle of a long chain that we've looked at over the last few days.
AYes.
QAnd is that an accurate printout of the email?
AYes.
MR. MYHRE: My Lady, could that be marked as an exhibit, please?
THE COURT: Don't we need to know more about it?
MR. MYHRE: I believe, My Lady, she's authenticated it as an email she received in the middle of that chain and that's --
THE COURT: Well, don't we need to know what chain?
MR. MYHRE: There is a subject line on that email.
QMs. Capuano, could you read it out?
A"Your loving home and parental teaching and guidance".
THE COURT: All right. Any objection?
MR. LAGEMAAT: No objection --
THE COURT: All right.
MR. LAGEMAAT: -- My Lady.
THE COURT: So that would be what?
THE CLERK: Exhibit 3, My Lady.
THE COURT: Thank you.
MR. MYHRE: Thank you.
EXHIBIT 3: Printout of email chain from
Patrick Fox to Desiree Capuano dated
01/14/2015, subject line "Your loving home
and parental teaching and guidance"
MR. MYHRE:
QMs. Capuano, I'm showing you another document. Do you recognize this as the email you sent that started the long chain we looked at titled "{G*****}'s summer visitation 2015"?
AYes.
QAnd is this an accurate copy of that email?
AYes.
MR. MYHRE: My Lady, could that be marked as the next exhibit, please?
THE COURT: Okay. No objection?
MR. LAGEMAAT: No objection, My Lady.
THE CLERK: Exhibit 4, My Lady.
EXHIBIT 4: Printout of email from Desiree
Capuano to Patrick Fox dated 04/20/2015,
subject line "{G*****} summer visitation 2015"
THE SHERIFF: Counsel, we're short by five.
MR. MYHRE: By five?
THE SHERIFF: Yeah.
MR. MYHRE: Please pardon me, My Lady. I'll have to bring in new copies tomorrow.
THE COURT: Perhaps the jurors wouldn't mind sharing for now, and Mr. Myhre will bring some copies tomorrow.
MR. MYHRE: I'm hitting 4:10, My Lady, but these are my last -- this is the last document I'm asking about.
THE COURT: All right.
MR. MYHRE: And I have a copy for Your Ladyship.
THE COURT: Thank you.
MR. MYHRE:
QMs. Capuano, do you recognize this as a printout of what appears to be all or virtually all emails between yourself and -- and Mr. Riess between May 2016 going back to February 2014.
AYes, these are the emails.
QOkay. And do you see that there's some highlighting on this page?
AYes.
QAnd can you just look it over and tell me if you agree that this is accurate? The emails that are highlighted in pink are email -- pardon me, let me back up. I'm going to suggest that every highlighted email is an originating email in a chain.
AOkay.
QThere may or may not have been follow-up emails. Now, the pink highlighting shows an email that you initiated, the yellow highlighting shows an email that Richard initiated but to which you did not respond --
AOkay.
Q-- and the green highlighting shows an email that Richard initiated to which you did respond.
AOkay.
MR. MYHRE: Just look through that document and tell me if that appears to be accurate, please.
My Lady, may I give copies to the jury?
THE COURT: No objection?
MR. LAGEMAAT: No objection.
MR. MYHRE:
QMs. Capuano, does my characterization of the highlighting appear to be accurate?
AYes.
MR. MYHRE: My Lady, if this could please be marked as an exhibit.
THE COURT: All right.
MR. LAGEMAAT: No objection.
THE CLERK: Exhibit 5, My Lady.
EXHIBIT 5: Document titled "Desiree Capuano"
containing printout of emails
MR. MYHRE: My Lady, those are all my questions.
THE COURT: All right. Thank you very much.
Members of the jury, thank you for your attention and your patience through the day when you've had to spend some time in the jury room. I ask you to come back tomorrow ready to start at the usual time, please. Thank you.
(JURY OUT)
THE COURT: Is there anything else we need to deal with?
MR. MYHRE: No, My Lady.
MR. LAGEMAAT: No, My Lady.
THE COURT: I take it that's the end of your involvement, Mr. Lagemaat.
MR. LAGEMAAT: Yes
THE COURT: Thank you very much.
MR. LAGEMAAT: Thank you, My Lady.
THE COURT: Thank you, Ms. Chatha.
Ms. Capuano, thank you for coming, and I understand you're excused now. There's no need for her to remain, I take it.
AThank you.
(WITNESS EXCUSED)
(PROCEEDINGS ADJOURNED TO JUNE 16, 2017, AT 10:00 A.M.)
Transcriber: S. Curran, K. Lowe