Maui News

Capobianco’s Request for New Trial Denied

March 6, 2017, 12:35 PM HST
* Updated March 6, 1:10 PM
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Motion for Retrial denied. PC: 3.6.17 by Wendy Osher.

Maui Chief Judge Joseph Cardoza today denied a motion for a retrial in the case involving Steven Capobianco, who was found guilty in December of murder and second degree arson in the death of his pregnant ex-girlfriend Charli Scott.

Defense Attorney Jon Apo asked Judge Cardoza to overturn Capobianco’s guilty verdict due to alleged jury misconduct, and alleged misconduct by the prosecutor.

Apo alleged that a juror went rogue from the process of collective deliberations, and allegedly admitted to communicating independently in the evening with at least nine other members of the jury via phone.

“A juror went rogue from the mandated process of collective deliberation and as a direct result of his or her unilateral talks with practically every other juror after hours, the collective decision of a hung jury after nearly two weeks of deliberations (that was communicated in writing) was in a matter of hours trumped by the fruits of a prohibitive after hours labor,” Apo argued.

Apo argued that the record showed that there was “a loyalty to juror #1 rather than a loyalty to following the jury instructions provided by the court.”


Judge Cardoza said that in the courts view, the general nature of the alleged misconduct is not of the type that substantially prejudiced the defendant.  “There is no indication of the juror continuing deliberations, but rather informing jurors that she would be speaking to the court about her concerns.”


When the juror in question approached the court, she indicated that the communication of the jury being deadlocked, “was not even revealed to the entire jury.”  According to information presented in court, the juror indicated to the court that the communication was “read and ran out the door.”  The juror claimed that the content did not reflect the majority, according to information presented in court today.

On the issue of jury misconduct, Apo also alleged that at least two jurors were “regularly exposed” to headlines during a nearly week-long recess between Wednesday, Dec. 21 and 26, 2016, that he says “exposed jurors to news coverage about the case.”

Judge Cardoza said, “regardless of any circumstance, the court was not going to be deliberating for half of that period,” in part because of the Christmas holiday and weekend.


Having been engaged in the case for more than half of the year, Judge Cardoza said the court felt it was appropriate to give the jury time to spend with their families during the holidays.  He said it would be “unrealistic, inappropriate and unfair” to not allow the jurors the right to enjoy the holiday.

The court also noted that the inability to reach a verdict occurred on Dec. 13, 2016; and the desire for the jury to continue deliberations was expressed on Dec. 14, 2016.

Judge Cardoza said that there was a case in the 1990s where there was a 17 day recess, which was determined to be “not unprecedented,” and when a trail court had a legitimate reason to recess, there was no violation of a defendant’s rights to a fair trial.

Apo further argued that, “The instant case was likely the highest profile and publicized trial in Maui County history with news articles being written on almost a daily basis.  The headlines to those articles would likely have been seen by at least some of the jurors.”

Judge Cardoza said “mere speculation” that the jurors might have been somehow exposed to, read or watched news accounts was not grounds for a new trial.  The judge said that there’s “absolutely nothing on the record” to support the claims.

The defense team also questioned phone records of Carly “Charli” Scott’s sister, Phaedra Wais, that the court did not allow as evidence.

Judge Cardoza said the court was never of the view that the actual phone instrument needed to be examined. “To state the obvious, Charli Scott’s phone was never recovered,” however her records were presented.  The defense had argued to utilize cell tower information relating to Wais, that was contained in the records, but the court determined that it went beyond the scope of what was intended.

The judge said that the information could have been presented by recalling a witness or by calling the defenses’ own exert.  He said it did not create grounds for a new trial.

Another issue that Apo put argued was wording that First Deputy Prosecutor Robert Rivera used in closing arguments regarding Scott’s jawbone and that it was speaking to the jury.

Judge Cardoza said the statements made by the prosecutor in the closing arguments concerning the number of bones recovered at the scene and the comment relating to the action of the jawbone were objected to, sustained and stricken from the record.

Final items relating to the size of the jeans put into evidence and the jury’s discussion regarding the mechanism that could have resulted in the injuries to Capobianco’s hands were raised by the defense.

According to information presented in court today, the juror seated in seat #3 used personal or professional experience to determine the injuries sustained by Capobianco on his hands were ligature marks. The information was reportedly shared among other jurors.

Judge Cardoza noted that photographic evidence depicting the injuries was introduced into evidence. He said assuming that the juror in seat #3 verbalized her impressions of the injuries, was neither improper, nor was it obtained by an outside source.  He said it also does not give rise to a new trial.

The court further revealed that during deliberations, a juror who claimed to be 6 feet tall, stood as the bailiff held a pair of jeans that was entered into evidence, and based on the experiment determined the blue jeans would have fit Capobianco.

In the courts view having the jurors observe a piece of evidence and drawing reasonable conclusions based on their observations, is not a violation, according to Judge Cardoza.

The court determined that it is improper for the court and violates the rules of evidence and Supreme Court precedent to allow inquiry into deliberations by the jurors.

The prosecution voiced opposition to the request for a new trial.

After court had recessed and as Capobianco was being escorted out of the courtroom, Scott’s mother, Kimberlyn turned toward the closing door and asked, “Where is she Steven?  Where is she?”

On Dec. 28, 2016, the jury unanimously found Capobianco guilty of second-degree murder of his pregnant ex-girlfriend and second-degree arson of her vehicle.

In addition to finding Capobianco guilty of the charges, the jury answered “yes” to the question of whether the murder of Scott was “especially heinous, atrocious and cruel.”  The enhanced charge means Capobianco qualifies for a sentence of life in prison without parole.

Case History/Background

Steven Capobianco was found guilty for the murder of his pregnant ex-girlfriend, Carly “Charli” Scott and 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.

Capobianco 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.”

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