In the case against Scott Dyleski, the prosecution claimed that Pam Vitale, wife of Dan Horowitz, was attacked and then murdered in her home by 16 year old Scott Dyleski at 10:12 AM on Saturday Oct. 15, 2005.
That morning Scott Dyleski had been out walking around his home on Hunsacker Canyon Rd. When Scott returned home, he greeted his housemates and sat with Kim Curiel on the couch as she checked school papers. This is not in dispute by anyone.
Initially both Kim and Fred Curiel told police Scott returned from his walk at approx 9:30 AM. At Scott's preliminary hearing Fred Curiel testified that Scott was already home when he checked his pager at 9:26 AM.
At trial, Fred testified he could no longer be sure if he SAW Scott in the house that morning before he and his family left to go shopping.
The prosecutor zoomed in on those words and used the conflicting feelings of Fred Curiel to make him look like a bumbling idiot to the jury. (click to read juror reaction to Fred Curiel) Imagine being convinced by law enforcement that somebody you loved killed somebody, and you are called to testify against them, yet you hold the knowledge that the prosecution's theory is wrong. It is reasonable to conclude this is exactly what happened with Fred Curiel.
Fred Curiel maintained that he was sure of the times as he checked his pager that morning, and maintains he left his home with his family, including Kim Curiel at 10:20 AM. Fred looked at his pager not once that morning, but on four different occasions. He checked his pager at 9:26 AM, 10:16 AM, 10:20 AM and 10:51 AM. On the stand Fred Curiel offered a suggestion as to how his timeline could be verified. This was never done.
Below is trial testimony of Fred Curiel. Follow along as Scott Dyleski's alibi is demonstrated. Remember, Scott coming home from his walk and sitting with Kim Curiel prior to her leaving for the Spirit store with Fred and her family is not in dispute by anyone.
Quote:
Q. You also discussed with the police officers, the Santiago brothers, what time you left the house Saturday morning; is that right?
A. Yes, I did.
Q. You told them that after seeing Scott at 9:26, that you stayed home until 10:20; is that right?
A. My recollection is they asked me what time I left the house, and I told them 10:20.
Q. Saturday morning?
A. Or about 10:20, yes.
Q. And again you told them you left the house at 10:20, on Saturday morning, before you ever talked to me, yes?
A. Yes.
Q. Before you ever talked to a defense investigator?
A. Yes.
Q. Before you ever talked to Mr. Jewett?
A. Yes.
Q. Five days after the day they were asking you about; correct?
A. Correct.
Q. You said you left the house at 10:20 --
A. Yes.
Q. -- with your family?
A. No. Okay. And here's where we need to get into the pedantic nature. I left the house at about 10:20, and I waited in the car -- talking about when I left with my family, when we departed the property, which is a different thing, that is, slightly later. That is later.
Q. How long did it take your family to get in the car with you?
A. By my estimation, six to seven minutes, on my perception of time.
Q. Would it be fair to say that you pay attention to time?
A. When I am concerned about time, yes.
Q. And you were concerned about time on Saturday morning, October 15?
A. Yes, I was.
Q. Which is why you can now say that it took your family about six minutes to get in the car?
A. Yes.
Q. So you left with your family at around 10:26?
A. 10:26, 10:27, yes.
Q. You told that to the police in October?
A. No. They didn't ask me what time we departed the property. They asked me what time I left the house --
Q. Okay.
A. -- and I told them 10:20.
Q. Okay.
A. That's my recollection.
Q. You testified at the preliminary hearing in this case about that too; correct?
A. Quite possibly.
Q. At the preliminary hearing, you were asked, after you saw Scott at 9:26 on Saturday, what did you do, how long were you in the house? Your response, "I was in the, I was in the living room briefly, I was trying to get people to get the kids excited about going, departing, and my wife made it clear that we would not be departing until she had finished reading her papers." Question, "How long did that take?" Answer, "I think it took about 40 minutes. We left at about 10:20." You said that?
A. I don't recall, but it sounds like something I might have said.
Q. And as you sit here today, do you remember leaving the house at 10:20 and leaving the property around 10:26?
A. Yes.
Additional Trial testimony:
Quote:
Q. What time did you leave your house Saturday morning, October 15?
A. I left the house at, you are saying, Saturday, the 15th?
Q. Yes.
A. At 10:20.
Q. What time did you leave your driveway?
A. That would be approximately, by my estimation of time, 10:26, 10:27.
Q. And did I hear you just say that you checked your watch or pager at some point before you got to the Spirit Store?
A. Yes, I did.
Q. What time was it then?
A. 10:51.
Q. 10:51?
A. Yes.
Q. Where were you when you looked at your pager and it was 10:51?
A. I believe we were on Willow Pass Road and it was prior to the final stoplight before the Spirit Store. I'm not certain, but I think that is now known as Fry Way. I could be wrong. It was the final stoplight just before -- it was prior to the final stoplight before reaching the Spirit Store.
Q. Why did you look at your pager then?
A. Ah, I had a schedule in my mind and I was estimating as to whether or not how we were doing on this schedule.
Q. So you looked at your pager at 10:51 --
A. Yes.
Q. -- in Concord?
A. Yes.
Q. You estimate that you left your house in Lafayette around 10:27?
A. Based on my perception of time and how long after, after I had previously checked my pager, yes.
Q. Prior to approximately 10:27, when is the last time you checked your pager?
A. 10:16.
Q. Where were you when you checked your pager at 10:16?
A. I was in the master bedroom.
Q. What were you doing?
A. I'm not 100 percent certain. I believe I may have been browsing the internet. If I was, those files are on a computer that was seized on October 20, and there would be time stamps which could be used to determine when I was there, and it would accurately determine that it has to be correct. And if you use those you have to correlate them with entries on a server that I would have gone to, because the clock on that computer was off by approximately 50 minutes. And I say approximately. It was definitely not 50 minutes, but it was approximately.
Q. Okay. The clock on your pager, was that accurate?
A. Yes, it is.
Q. It still is?
A. Yes, it should be.
Q. So you looked at your pager at 10:16. When is the last time that you looked at it before then?
A. 9:26.
Q. Okay. So at 9:26, you look at your pager?
A. (Witness nodded head affirmatively.)
Q. Yes?
A. Yes.
Q. At least on October 20, you were sure that you saw Scott at that time; correct?
A. After that, yes.
Q. After that, but before 10:16?
A. Yes.
Q. Then at 10:16, you look at your pager in your house --
A. Yes.
Q. -- correct?
A. Yes.
Q. Shortly thereafter, you and your family leave the house --
A. Yes.
Q. -- correct? Then when you are in the car with your family, you look at your pager again and it's 10:51?
A. Yes.
Q. That's in Concord?
A. Yes.
Q. Just before you arrive at the Spirit Store?
A. Shortly before arriving at their parking lot, correct.
Q. You are sure about all of these times?
A. Yes.
MS. LEONIDA: Thank you.
THE COURT: Re-redirect?
MR. JEWETT: Just a couple of questions.
MR. JEWETT: Q. Mr. Curiel, two questions, sir. Have you told anybody, to your knowledge before this very moment, that you arrived at the Spirit Store at 10:51?
A. I don't believe so. We didn't -- I'm still not telling anyone. I don't recall telling anyone we arrived at the Spirit Store at 10:51.
Q. When you checked your pager when you were approaching the Spirit Store, it was 10:51. Have you ever told anyone that before just right now?
A. Yes, I have.
Q. Who?
A. I believe I told Ed Stein.
Q. Anybody else?
A. Yes. I have some coworkers.
Q. And when did you tell them that?
A. Ah, oh, within the last couple of months.
Q. Okay. The last couple of months. Anybody before that?
A. A friend.
Q. When was that?
A. I don't recall the date.
It is reasonable to conclude that Fred Curiel paid close attention to the time on Saturday morning, October 15, 2005, just as he claimed. It is reasonable to conclude that he is accurate.
It is not clear why public defender Ellen Leonida did not introduce the computer forensics to technically verify Fred's time as he suggested, nor is it clear why information given to her investigator by Fred Curiel concerning his multiple time checks seemed lost to Ms. Leonida.
What is clear is Scott Dyleski has a solid alibi in Fred Curiel.