Steamboat Springs Sgt. 1st Class Richard Lopez was attacked by Eduardo and David Capote and did not raise his arms to defend himself in the altercation that led to his Jan. 5 death, witnesses told Steamboat Springs police detectives.
Details of the Jan. 2 fight were released Monday in the arrest warrant for the Capote brothers, who turned themselves in to local authorities before an advisement hearing in Routt County Court. Eduardo Capote Jr., 27, is charged with second-degree assault, a Class 4 felony punishable by 5 to 16 years in prison. He also is charged with two counts of third-degree assault, a Class 1 misdemeanor.
David Capote, 23, is charged with two counts of third-degree assault, a Class 1 misdemeanor punishable by as many as two years in prison.
The Capotes, from Miami, appeared in court via videoconference from Routt County Jail. Judge James Garrecht set Eduardo Capote Jr.'s bail at $10,000 and David Capote's at $1,500. Both were released Monday afternoon and have been allowed to return to Miami until their May 20 disposition hearing.
Lopez, 37, died of severe head and brain trauma in a Denver hospital. Police have said Lopez and friends Timothy and Michael Wesley Mottlau were involved in an altercation with the Capotes stemming from jukebox song selection at The Tap House bar and restaurant. The two groups eventually left the bar and were involved in an altercation at Seventh Street and Lincoln Avenue. A coroner's report revealed Lopez suffered a blow to the chin and then a fatal blow when he fell back and slammed his head against the asphalt.
Charles Feldmann, the Steamboat Springs attorney representing the Capotes, said Monday that his clients were acting in self-defense.
"I think it's a tragedy to charge these two brothers," he said, referring to Lopez and his friends as "highly-trained, aggressive military men" who were "antagonistic, looking for a fight."
However, several witness statements contradict Feldmann's account.
According to the arrest warrant completed by Steamboat Springs police Detective Dave Kleiber, Eduardo Capote Jr. heckled Michael Wesley Mottlau about Mottlau's jukebox song selection. According to Michael Mottlau, Eduardo Capote Jr. challenged him to a fight, and the two groups went out the back door. There, they were discouraged from fighting by The Tap House staff and the Capotes' female companions - Eduardo's wife and David's girlfriend.
The two groups re-entered the bar, where the Capotes paid their tab and left through the restaurant's front door, according to witness statements. Lopez and the Mottlaus finished their drinks and also left through the front door, according to the arrest warrant.
Lopez and the Mottlaus were walking to their car, parked at Sixth Street and Lincoln Avenue, when they crossed paths with the Capotes and their female companions, Michael Mottlau told authorities. The groups yelled back and forth at one another, and Lopez's group continued on through the intersection at Seventh Street and Lincoln Avenue.
Independent witnesses told police that Eduardo Capote Jr. then ran at Lopez and punched him in the face - "a running, good punch" and a "sucker punch," as described by one witness. Lopez is said to have immediately fallen to the ground.
Michael Mottlau said he also was knocked to the ground and that Timothy Mottlau attempted to tackle one of the Capote brothers but that he too was knocked down. Michael Mottlau told authorities that the Capote brothers then repeatedly punched and kicked the trio while they were on the ground.
Witnesses and a cell phone video that captured about 13 seconds of the altercation indicate that one of the Capotes, believed to be Eduardo, yelled "Don't (expletive) with Miami!" after the incident was over. Audio from the recording also records a man's voice yelling "boom : boom" each time a punch was thrown, according to the warrant.
The witnesses interviewed by police stated that the Capotes instigated the fight, and all seemed to agree that neither Lopez nor the Mottlaus fought back.
The arrest warrant also points out inconsistencies in the statements given by the Capotes' female companions. Both women said Lopez ran at Eduardo Capote Jr. One of the women, Karen Rodriguez, eventually changed her story and said Eduardo Capote Jr. ran "a couple of feet" toward Lopez but that she did not see him hit Lopez.
In contrast to assertions that Lopez hit his head after slipping on ice, Steamboat Springs Fire Rescue personnel who responded to the scene said the road surface was dry and devoid of snow or ice.
Fourteenth Judicial District Attorney Elizabeth Oldham said David Capote received lesser charges because he was not the one who hit Lopez. However, she said he was involved in a fight with the two Mottlau brothers, who the arrest warrant indicate were trying to protect Lopez while he was laying on the ground injured.
The Mottlau brothers sustained cuts and bruises to their faces and bodies during the fight, according to the warrant. Michael Mottlau received treatment at Yampa Valley Medical Center for his injuries. A detective who met the Capote brothers at Yampa Valley Regional Airport on Jan. 2 before they took a scheduled flight back to Miami noted that neither of the Capote brothers appeared to have any injuries resulting from the fight.
Feldmann said he expects the cases will go to trial. He said Colorado's self-protection laws will work to his clients' benefit.
Eduardo Capote Jr. is vice president of his father's construction firm. David Capote is a full-time student at Florida International University and works a part-time job, according to his parents, Miriam and Eduardo Capote Sr., who traveled with their sons to Steamboat Springs.