by Kathryn Joanne Dixon

On Tuesday, August 8, 2006, Deputy District Attorney Harold Jewett tried to prove through the testimony of Kim Curiel that Scott Dyleski arrived at her home at 10:45 p.m. after his walk on Saturday morning.  He tried to establish a time-line to contradict Dyleski’s alibi that he was at home when Pamela Vitale was murdered.  

Jewett, in his opening argument, said that Pamela Vitale was sitting in her trailer working on her computer on Saturday morning, October 15, 2005.  She was searching key words regarding her husband and his current defense of Susan Polk for the first degree murder of her psychologist husband Felix Polk.  She was also looking up some of his other cases.  Before she could click on a keyword sequence she had pulled up, at exactly 10:12 a.m., she was interrupted, and Jewett said, Scott Dyleski appeared at her trailer door.  It was alleged that he entered and murdered her, despite her valiant struggle to survive. To prove his theory that Vitale was interrupted, Jewett called a expert to the stand.  Computer forensic specialist Kyle Ritter testified at trial that he inspected Vitale’s computer and it showed no activity after 10:12 a.m.  

In her opening statement, public defender Ellen Leonida told the jury Dyleski had an iron clad alibi.  Fred Curiel, owner of the home where Scott and his mother, Esther Fielding lived, said Dyleski came home at 9:26 a.m. on Saturday morning and was there with him at least until he departed to go shopping with his family after 11:00 a.m.  At the preliminary hearing, Fred Curiel testified that he looked down at his pager when Dyleski came into the house on Saturday morning because he was concerned about he and his wife would be late for a planned shopping trip.  Curiel, whose thought processes are those of a precision-oriented engineer (he is a computer consultant for Kaiser Permanente), stated he saw Dyleski sitting on the couch with his wife at 9:26 a.m.

On Tuesday August 8, 2006, Jewett called Kim Curiel to the stand to try to disprove the iron-clad alibi her husband presumably established.  Did he succeed?

Sometime in February 2006, Fred Curiel gave to Jewett a credit card history report of his credit card activity for the date of Saturday October 15, 2005, the day Vitale was murdered.  Fred and Kim Curiel and their three children left their home that Saturday and went to the “Spirit” store in Concord.  Kim Curiel purchased items for Halloween and Fred Curiel separately purchased a toy skull.  The credit card transaction report showed Kim’s purchase at 12:36 p.m. Pacific Time and Fred’s purchase at 12:44 p.m. (The actual report used East Coast Time.) There is no dispute, so far, about the numbers stated on the credit history report nor has the document's authenticity been questioned.

When Kim Curiel testified, Jewett used the credit card history report to refresh her memory as to when she made her purchase.  Kim Curiel looked at the credit card history and saw the times on it.,  She then stated her memory was refreshed and that the times were correct.  Then, using a one of these time entries as an end point, Jewett rolled a large paper on the court’s board, and began marking a time-line, going backward from the end time of 12:44, the time entry for the purchase by Fred Curiel.  Kim Curiel then testified that she and Fred had spent about one hour at the store.  Prior to that they spent 3 to 5 minutes to get out of the car in the parking lot and into the store.  Jewett rounded this off to four minutes, concluding the couple had arrived at the parking lot of the store at 11:40 a.m.  Jewett marked the time 11:40 a.m. on the time-line.  Kim Curiel then testified it took her about twenty-five minutes to drive from her home at 1050 Hunsaker Canyon Road to the store and that it took the family about two minutes to leave the house and get into the car for the trip to the store.  Jewett put the time of  11:13 a.m. on the time-line as the time Kim Curiel and her family left their home and 11:10 a.m. as the time they got into their car.  Kim Curiel testified she spent ten to fifteen minutes grading school papers after Scott Dyleski left the couch where the two of them were sitting. Hal Jewett marked 11:00 a.m. as the time Dyleski got off the couch where he was sitting with her just after she told him she had to finish correcting the papers.  Kim Curiel testified she observed Dyleski enter the front door of the house 15 minutes before the time he got off the couch.  Jewett marked on the time-line, the time 10:45 as the time Dyleski entered the house.  

Did Jewett establish this time-line beyond a reasonable doubt for the jury?   

It is notable that the times Kim Curiel gave were her own estimate.  She did not testify she was referring to a clock or watch or pager at any time in order to make these estimates.  She did not state these times were correct to the exact minute.  If any of the times Kim Curiel estimated were off by even one or two or three minutes, the time line would be altered by a few minutes in either direction.  That is very significant because, according to Jewett, Dyleski had to have interrupted Pamela Vitale at 10:12 a.m. when her computer activity stopped.  If Jewett's time-0line regarding Kim Curiel's testimony is correct, then Scott Dyleski had to have arrived home at 10:45 a.m.  It takes 20 minutes to walk down the steep rugged hill from the Vitale/Horowitz home to Kim Curiel’s home.  That means, according to Jewett's the time-line, if Dyleski killed Vitale, he did so in thirteen minutes.  Committing this brutal murder in thirteen minutes may be possible, but not plausible.  Jewett, however, has not established through expert testimony that the killing took thirteen minutes to accomplish considering the extreme struggle and the valiant fight Pamela Vitale is acknowledged to have waged before her murder.

In addition, If Kim Curiel’s estimates are off by even five, ten or fifteen minutes, the allotted thirteen minute time period for the fight and murder could be significantly reduced to a too-tight time period for such a fight.  It could be that there was no time at all for such a fight to occur.   Of course, the estimates could go the other way too.  Either way, is this proof beyond a reasonable doubt?  Is it proof enough to convict a man of murder?

Two glaring questions remain: (1) Are Kim Curiel's estimates of her time-line introduced by Hal Jewett accurate? and (2) Is the credit card history report accurate?  Although the report could be used to refresh Kim Curiel’s recollection as to the precise time of her purchase and to establish the time of the alleged purchase by her husband as being 12:44 p.m., the report itself is hearsay.  In fact, Judge Barbara Zuniga repeatedly ruled it was hearsay upon Leonida’s objection, when Jewett attempted to introduce it for the truth of the matter asserted during Fred Curiel’s testimony, which commenced after that of his wife.  The report is hearsay because it is an out-of-court statement, so to speak, of a machine or series of computers which capture images based upon some initial swipe of a magnetic credit card through a terminal and/or some typing of a store clerk into her machine, and/or by the entry of a PIN number by the customer.  Jewett has not produced the Spirit store clerk or any experts to authenticate the accuracy of the terminal and various computers and their transactions that day and to try to show the times are reliable and accurate to the minute. 

Thus, Jewett’s end time on the time line of 12:44 is legally hearsay.

Can Leonida show the unreliability of that end-time other than by her simply asserting it is hearsay.  Apparently Leonida obtained this credit history report – referred to in prior hearings as the store “receipt” only a couple of weeks ago, and the delay was because of her own error.  Jewett produced another receipt showing his office had provided it to her in February 2005 when Fred Curiel gave it to him that month.  Leonida had inadvertently “missed” that document and didn’t realize it existed until a couple of weeks ago.  Did she have time to prepare expert testimony to rebut the document's reliability?

At 3:00 p.m., Fred Curiel took the stand after his wife testified on Tuesday afternoon.  Jewett began by asking him if he talked to Leonida’s investigator Ed Stein last week.   Fred said he spoke with Stein and Stein told him something attributed to Jewett himself.  Jewett had contended at a prior hearing that Stein influence Fred Curiel to change the time line by telling him the DA’s theory of the time-line, although this matter has not been subject to any public hearing. 

Fred Curiel testified that he told Stein when he met with him that he had a change to make in his estimate of the time he spent at the Spirit Store.  Fred said he spent one and one-half hours there.  He acknowledged he had told the sheriff deputies shortly after the search raid of his home that he spent “more than one hour” at Spirit store.  He noted he that at the Sheriff's station after the raid, he was on the floor fearing he was passing out when he spoke to the deputies.  

Fred Curiel also testified he believed he paid for his items at the store before his wife did, although the credit history report indicates the reverse.  He ended his testimony by stating he purchased his item at 12:25 to 12:30 p.m., not at 12:44 as the credit report history indicated. Prosecutor Hal Jewett immediately pushed hard to have the credit card history introduced for the truth of the matter asserted.  The Judge sustained defense counsel Leonida’s hearsay objections.  Judge Zuniga the proceedings at 4:30 as she usually does. 

The jury has yet to hear how Fred Curiel reached his conclusion as to the time he purchased his item at the Spirit store.  It is unclear whether Jewett will draw yet another time line on the courtroom’s board and take Fred Curiel back in time to the time he first saw Dyleski after he entered the Curiel residence after his walk on Saturday morning.  Fred Curiel has already testified that he did not observe Dyleski actually enter through the door, although he did seem him after he entered. Direct examination on that aspect of Fred Curiel’s testimony has barely commenced. 

The Judge instructed the jury to leave and return the next day.  She then discussed the introduction of exhibits into evidence.  Jewett tried to have his time-line introduced.  Leonida objected on hearsay grounds.  The judge ruled it would not be introduced on grounds of hearsay, but that Jewett, could argue the matter of  the time-line to the jury.  Jewett will argue his hearsay and estimate-oriented time-line is so correct that the jury should use it to find a man guilty of murder.  No doubt about it.   

Kathryn Joanne Dixon © August 8, 2006