Capobianco Trial: Jury to be Asked if Murder was “Heinous”

Steven Capobianco (left) with his defense team. PC: 12.28.16 by Wendy Osher

A day after finding Steven Capobianco guilty of second degree murder and second degree arson, the jury has yet to hear arguments on an enhanced sentencing allegation in the state v Capobianco murder trial.

For the alleged aggravated circumstances, the jury will be asked whether the state proved beyond a reasonable doubt that the murder in the second degree of Carly “Charli” Scott was “especially heinous, atrocious and cruel manifesting in exceptional depravity.”

Maui Chief Judge Joseph Cardoza denied the defense’s request for a continuance saying both parties have known “well before the commencement of trial” about the allegation, since the time when the indictment was returned.

But when asked on Thursday if he planned to testify for that portion of the trial or remain silent, Capobianco said he wasn’t ready to make that decision.  “Literally the rest of my life depends on this decision… I just have not been able to make a decision yet,” said Capobianco in court.

When asked how much time he would need, Capobianco said, “At least until sometime tomorrow if that’s at all possible.”

Capobianco’s attorney, Jon Apo expressed concern over reconvening so soon after a verdict was rendered on the murder and arson charges.  “I can’t even imagine he would have an intelligent decision without having a night to think about it,” said Apo who expressed concern over the time given to “digest the verdict.”

Apo said his client has had no time to think about the next phase of trial.  He asked that the court reconvene “as soon as it is practical,” saying “It’s not practical for him to give an intelligent answer,” at this time.

Apo also said that he wanted time time to research whether his client can assert a right to waive a jury trial for the enhanced sentencing.  “It may inconvenience the jury for a holiday weekend, but in light of the history of this case, I would submit that that is outweighed by my client’s due process rights.”

In denying the continuance, Judge Cardoza said, “it would not seem appropriate for a waiver of a trial by jury,” noting that if the trier of fact was a judge instead of a jury for the second degree murder charge, it would be different.

Prosecuting attorney Robert Rivera addressed the court saying, “With all due respect, we are at this stage because the defendant has asserted his right to a speedy trial.  This court afforded him that right. It’s not fair for the defendant to speed up or slow down,” when he decides to do so.  Rivera said all parties were informed of the state’s intent before the trial began, and said, “this should be no surprise to either side.”

The state has already waived its right to an opening statement and agreed not to present further evidence in the case, indicating it is ready to proceed.

A clerk with the court told Maui Now that the court is expected to reconvene sometime on Friday, Dec. 30, 2016 to go on the record regarding scheduling for the aggravated circumstances allegation in the indictment and seek a decision from the defendant on whether or not he plans to testify.

Due to the upcoming New Years holiday weekend, at least one of the neighbor-island jurors has indicated that their travel options are limited for getting on and off island anytime after noon on Friday, presenting a consideration for the court in scheduling.

If both sides agree to forgo opening statements and the presentation of additional evidence, the court has indicated that this portion of the trial will take approximately two hours, including about 25 minutes for closing and rebuttal statements.  There are no restrictions on how long the jury can deliberate on the question.

The jury’s response will determine whether or not Capobianco qualifies for a sentence of life in prison without parole.

Case History/Background:

Steven Capobianco is standing trial for the murder of his pregnant ex-girlfriend, Carly “Charli” Scottand for setting her vehicle on fire in February of 2014.

Scott was 27-years-old and five months pregnant at the time with an unborn child fathered by the defendant.  Capobianco pleaded not guilty to the charges, but was found guilty on both counts on Wednesday, Dec. 28, 2016.

The court is still reviewing alleged aggravated circumstances for enhanced sentencing.

The defendant is the last person known to have seen Scott alive.  In the days following Charli Scott’s disappearance, Capobianco had done an interview with police in which he said Scott had picked him up on the night of Sunday, Feb. 9, 2014, and dropped him off at his truck that he said got stuck in Keʻanae on Feb. 8, 2014.

According to the account, both headed back to Haʻikū, with Scott following Capobianco in case his vehicle broke down again.  Scott was reported missing the next night on Feb. 10, 2014.

In closing arguments, the defense suggested that the story Capobianco told police could have been lie to cover up a drug deal involving marijuana.  Defense Attorney Jon Apo said, “This big lie, the state says is proof of murder–Ladies and gentlemen, why would it be a surprise to anyone that a drug dealer, as the state has evidenced him to be, would be lying to a detective about why he was at a particular location?”

Prosecuting attorney Robert Rivera said that Capobianco was the “only person with a motive, the opportunity and intent,” and said it was “utterly and absolutely ridiculous,” that “he didn’t try to clear his name and continued to lie just to cover up some kind of marijuana deal.”

The defense also argued that marks left on a jawbone recovered from Nuaʻailua were consistent with scoring from a pig or wild boar.  “Dr. Laufer tells you that parallelism of the scratches make it highly unlikely that those were caused by a knife,” Apo said during closing arguments.

That argument was contrary to the testimony presented by several witnesses for the prosecution who said the marks were consistent with a knife.  Dr. Lindsey K Harle a Forensic Pathologist with Clinical Labs of Hawaiʻi testified that incision injuries were likely inflicted by “someone attacking her with a sharp object” or someone using a knife to “essentially de-flesh the bone.”