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Sonoma County prosecutors are still deciding whether to seek the death penalty against a Colorado man accused of shooting to death three would-be partners in a marijuana deal gone bad.

Mark Cappello, 46, of Central City, Colo., is suspected of killing the men execution-style in a house near Forestville on Feb. 5 as they prepared at least 69 pounds of pot for transport to New York.

If convicted of three counts of murder with special circumstances, Cappello could be eligible for death by lethal injection under at least three scenarios. Judge Robert LaForge last week ruled there was enough evidence presented at a preliminary hearing to prove Cappello was lying in wait, committed multiple murders and did it for financial gain — all grounds for the death penalty.

District Attorney Jill Ravitch, who has yet to pursue capital punishment in any case since taking office in 2011, is not expected to announce a decision when all sides come back to court Thursday to set a trial date.

Assistant District Attorney Christine Cook said Friday prosecutors were following an official protocol for making such decisions that involves presenting a case to a review committee and soliciting input from the victims' families. Defendants are also permitted to make arguments against it.

Cook did not say when a decision would be made.

"The process is still underway," Cook said.

Cappello's attorney, Michael Meehan, said he believes prosecutors will eventually go for it. But he doesn't think they can prove the charges, in part because the district attorney's case relies so much on testimony from a co-defendant, Odin Dwyer, 38, also of Colorado, who along with his father profited most from the slayings, Meehan said.

He said Odin and Francis Dwyer, 66, of New Mexico, ended up with all of the weed taken from the house on Ross Station Road. Also, father and son were the ones who dumped the suspected murder weapon, a .45 caliber semi-automatic pistol, Meehan said.

"The evidence points as equally to Odin Dwyer as it does to Mark Cappello," Meehan said. "He never received anything from this."

Meehan said Cappello's role in the deal was to transport pot purchased by victims Todd Klarkowski, 43, of Boulder, Colo., and Richard Lewin, 46, of Huntington, N.Y., from the third victim, Raleigh Butler, 24, formerly of Sebastopol.

Cappello enlisted the Dwyers to do the actual driving, Meehan said.

But statements Odin Dwyer made to police suggest Cappello planned to double-cross the victims all along. At a hotel on Santa Rosa Avenue, Cappello wiped his gun and bullets with alcohol, Dwyer said.

Once inside the Forestville house the morning of Feb. 5, he insisted the victims remove the batteries from their cellphones to prevent detection by law enforcement, Dwyer said.

Cappello also made up a fictitious person named "Vick" whom he told the victims was waiting in a car nearby to make sure no one was surveilling the house, Dwyer said.

Also, he said Cappello was expected to bring $275,000 the day of the killing. He told the victims he left it at the hotel and would get it later, creating tension among him and the group, Dwyer told police.

"He thought the tension was elevated, heated," Detective Brandon Cutting of the Sonoma County Sheriff's Office testified last week.

Meehan called the account "a fiction."

"There is no evidence that Mr. Cappello had any money at all," Meehan said.

Still, the group — not including Francis Dwyer, who waited at a Santa Rosa hotel room — proceeded to prepare the pot for driving it across country, Dwyer told police.

Within 15 minutes of arriving, all the men moved to a back bedroom and had begun heat-sealing two-pound plastic bags of marijuana and spraying the bags with enzyme to reduce odor, Dwyer said.

Everyone was on the floor, busily working, except Cappello, who stood by the door, Dwyer said.

At one point, Dwyer said Cappello nodded to him and asked him to call Vick. Dwyer said he got up and walked into the kitchen when he heard three "fairly quick" shots.

He turned and saw Cappello standing with his arm extended and a gun in his hand, he said.

In the room, the three men lay sprawled on the floor, Dwyer said, each with a bullet in his head.

Lewin appeared to be gasping for air and Butler was staring at him with a bullet hole over his eyebrow, Dwyer told police. Klarkowski was face-down, he said.

That's when Dwyer said Cappello looked at him and said, "It had to be done," Dwyer told police.

Both men packed the weed in Cappello's Ford Bronco, he said. They drove back to Cappello's hotel room, where Cappello shaved off his beard and changed his clothes, which he later dumped near I-80 in Solano County, Dwyer said.

Cappello instructed the Dwyers to dispose of his gun in a creek near Sonoma State University. It was later found by police.

The men drove back to Colorado in separate vehicles. When they arrived, they split up the weed. Cappello gave his share back to the Dwyers to sell for him. He asked for $90,000 in return, Dwyer said.

Cappello also gave each man up to $4,000 in cash, Dwyer said.

All three were later arrested in different states, in part with help from surveillance camera photos. Detectives recovered about 60 pounds of marijuana and some cash from the Dwyers, Cutting said.

Cappello was captured in Mobile, Ala., after a traffic stop. He had a passport and credit cards but none of the pot.

All three await trial in the Sonoma County jail. If prosecutors decide to pursue the death penalty for Cappello, he will get a second lawyer appointed at public expense.

Lethal injections have been halted in California since 2006 pending the outcome of legal challenges claiming the procedure constitutes cruel and unusual punishment. The last Sonoma County defendant sent to San Quentin's Death Row was Robert Scully, who was convicted of the 1995 shotgun slaying of Deputy Frank Trejo.

You can reach Staff Writer Paul Payne at 568-5312 or paul.payne@pressdemocrat.com.