Jury: We’re divided

Disagreement reigns with jurors — even on if they are deadlocked — as they return to the deliberation room

Second Circuit Judge Joseph Cardoza listens as defense attorney Jon Apo and prosecutors discuss instructions to jurors before they were sent to continue deliberations. The Maui News / MATTHEW THAYER photo

Second Circuit Judge Joseph Cardoza listens as defense attorney Jon Apo and prosecutors discuss instructions to jurors before they were sent to continue deliberations. The Maui News / MATTHEW THAYER photo

WAILUKU — Jurors in the most followed murder trial on Maui in decades that has lasted a half year told the judge Wednesday that they are divided but would continue deliberating.

The jury of six men and six women in the Steven Capobianco murder trial sent a communication to 2nd Circuit Judge Joseph Cardoza on Tuesday afternoon, saying that it could not come to an unanimous verdict.

“We have completed our deliberations. We have voted three times. We are unable to reach a decision for both convictions. We are too divided,” Cardoza said Wednesday morning, reading from a communication from the jury relayed Tuesday.  “After five months of testimony, 75 witnesses, nine days of deliberations, this is our final decision.”

But 15 minutes after jurors had left for the day Tuesday, one of the jurors contacted the bailiff expressing concern about the communication, Cardoza said. A private bench hearing involving the judge, the attorneys and the female juror was held Wednesday morning with the jury out of the courtroom.

Following the conference at about 12:30 p.m., Cardoza said in open court that the juror felt that the communication delivered Tuesday afternoon may not express the views of all 12 jurors. With agreement of attorneys, the judge sent a communication to the jury, asking if it would be able to arrive at a verdict with further deliberations.

Phaedra Wais, younger sister of Carly Scott, watches Wednesday’s court proceedings with friends and family in 2nd Circuit Court. The Maui News / CHRIS SUGIDONO photo

Phaedra Wais, younger sister of Carly Scott, watches Wednesday’s court proceedings with friends and family in 2nd Circuit Court. The Maui News / CHRIS SUGIDONO photo

About an hour and half later, Cardoza read another communication from the jury in court: “The jury has decided to continue to deliberate, to feel more confident in their own personal vote decision.”

The jury also asked to speak to Cardoza, leading to another bench conference. A different female juror came out from the deliberation room and spoke for about five minutes with the attorneys and the judge without the rest of the jury present.

After the conference, Cardoza said in open court that the discussion involved the jury continuing to deliberate in the case.

The jury also asked for testimony transcripts for Maui Police Department Evidence Specialist Anthony Earles and Maui Police Detective Nelson Hamilton, Cardoza said. Those transcripts would probably not be available until Monday, he added.

Defense attorney Jon Apo requested that the jury continue to deliberate while waiting for the transcripts. “I just hate for them to just call it a week until they get those transcripts,” Apo said.

Murder defendant Stephen Capobianco shares a rare smile in court with defense attorney Matthew Nardi before Wednesday’s court proceedings. The Maui News / MATTHEW THAYER photo

Murder defendant Stephen Capobianco shares a rare smile in court with defense attorney Matthew Nardi before Wednesday’s court proceedings. The Maui News / MATTHEW THAYER photo

Deputy Prosecutor Tracy Jones said that the jury has indicated that it will continue to deliberate.

Capobianco, 27, has been charged with second-degree murder of ex-girlfriend Carly “Charli” Scott and second-degree arson of her vehicle almost three years ago. Scott was five months’ pregnant with Capobianco’s child.

He has pleaded not guilty to the charges.

Scott’s parents were at court proceedings Wednesday.

“I’m very happy that the jury is taking their time and being really clear and doing their job,” Kimberlyn Scott, mother of Carly Scott, said outside the courtroom. “We appreciate that. In cases that I’ve read up on, it can be a really bad thing if it’s taken this long. I feel in a way, reassured that they’re leaning towards a hung jury as opposed to clearing him. So that’s a comfort.”

Carly Scott’s mother, Kimberlyn (from left), talks to Scott’s father, Robert, and Victim Witness Division Director Ana Makoni on Wednesday afternoon outside the Wailuku Courthouse. The Maui News / CHRIS SUGIDONO photo

Carly Scott’s mother, Kimberlyn (from left), talks to Scott’s father, Robert, and Victim Witness Division Director Ana Makoni on Wednesday afternoon outside the Wailuku Courthouse. The Maui News / CHRIS SUGIDONO photo

Earlier in the morning when the jury initially announced its stalemate, Kimberlyn Scott said she was “really not shocked” and “kind of felt like this was coming.” She still has to hold back tears when thinking or talking about her daughter, but when asked if she hopes or believes that the jury will come back with a guilty verdict, she declined to answer and expressed sympathy for jurors.

“I try really, really hard not to put any of that out there,” she said. “I really do feel bad for these people. I would not want to be doing what they’re doing.”

The screening of jurors began May 23, and testimony in the trial started June 27. Jurors began deliberating Dec. 1.

The victim’s parents were not notified of Wednesday’s hearings by state Judiciary officials and found out about the proceeding through an Akaku Maui Community Media’s live stream alert. Robert Scott, father of Carly Scott, said his sister in California told him of the hearing.

The parents said it was the ninth time they had not been notified of a hearing in the case.

“We’re pretty disappointed that they didn’t notify us,” Robert Scott said. “It just feels like in this whole system of things that we’re on the very, very, very bottom of the totem pole. They may not want it that way, but that’s how it is, and I suspect the system is the same for others.”

The family has been strong advocates for establishing constitutional rights for crime victims under Marsy’s Law. The law would require the state to inform victims and their immediate family of court proceedings and key developments in cases.

When she was last seen the night of Feb. 9, 2014, Scott, 27, was in the fifth month of her pregnancy with a son fathered by Capobianco.

He told police that Scott drove him from Haiku to about 3 miles past Keanae the night of Feb. 9, 2014, to retrieve his truck, which had stalled there the night before. After fixing a loose battery cable on the truck, Capobianco said he was driving back to Haiku, with Scott following, when he lost sight of her headlights near Twin Falls.

Her dog Nala, who Capobianco said had been with Scott in her vehicle that night, was found the morning of Feb. 10, 2014, at Nahiku Marketplace.

Scott’s 1997 Toyota 4Runner was found burned the evening of Feb. 12, 2014, near the “Jaws” surf spot in Peahi.

Starting the next day, her clothing, green blanket, lower jawbone fragments and other pieces of evidence were found in a wooded area at Nuaailua Bay, which is about 4¢ miles toward Haiku from the spot where Capobianco said his truck had stalled.

Many prosecution witnesses poked holes in Capobianco’s story. In his closing argument, Apo said Capobianco lied to police about why he was with Scott the night she was last seen alive. He told jurors that the defendant was trying to protect their marijuana activities and not to cover up a murder.

Both the prosecution and defense attorneys declined comment after Wednesday’s proceedings, noting that the jury was still deliberating.

* Melissa Tanji can be reached at mtanji@mauinews.com and Chris Sugidono can be reached at csugidono@mauinews.com.

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