State v. Capobianco

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-APR-2021
07:49 AM
Dkt. 581 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
STEVEN CAPOBIANCO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CRIMINAL NO. 2PC161000133)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Steven Capobianco (Capobianco)

appeals from the Second Amended Judgment; Conviction and

Sentence; Notice of Entry (Second Amended Judgment) entered on

December 7, 2017, in the Circuit Court of the Second Circuit

(Circuit Court).1 Following a jury trial, Capobianco was found

guilty of one count of Murder in the Second Degree (Murder),

stemming from the death of his former girlfriend, Carly "Charli"

Scott (Scott), in violation of Hawaii Revised Statutes (HRS)

1
The Honorable Joseph E. Cardoza presided.
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§ 707-701.5 (2014),2 and one count of Arson in the Second Degree

(Arson) in violation of HRS § 708-8252 (2014).3 Capobianco was

sentenced to a term of imprisonment for life with the possibility

of parole for Murder, and ten years of imprisonment for Arson,

consecutive to the term for Murder.

Capobianco raises three points of error on appeal,

contending that: (1) there was insufficient evidence to convict

him of the charges; (2) he was deprived of a fair trial due to

prosecutorial misconduct; and (3) it was error for the Circuit

Court to deny Capobianco's Motion for New Trial based on the

break in jury deliberations from December 21, 2016 to December

27, 2016, and alleged juror misconduct.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Capobianco's points of error as follows:

2
HRS § 707-701.5 provides, in pertinent part:

§ 707-701.5 Murder in the second degree. (1) Except
as provided in section 707-701, a person commits the offense
of murder in the second degree if the person intentionally
or knowingly causes the death of another person[.]
3
HRS § 708-8252 provides, in relevant parts:

§ 708-8252 Arson in the second degree. (1) A person
commits the offense of arson in the second degree if the
person intentionally or knowingly sets fire to or causes to
be burned property and:
. . .
(b) Knowingly or recklessly damages the property of
another, without the other's consent, in an
amount exceeding $1,500.

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(1) Capobianco argues that, notwithstanding what he

describes as "massive circumstantial evidence," there was

insufficient evidence to convict him because the evidence was

inadequate to link him to Murder and Arson.

An appellate court reviews the sufficiency of the

evidence as follows:
[E]vidence adduced in the trial court must be
considered in the strongest light for the prosecution when
the appellate court passes on the legal sufficiency of such
evidence to support a conviction; the same standard applies
whether the case was before a judge or jury. The test on
appeal is not whether guilt is established beyond a
reasonable doubt, but whether there was substantial evidence
to support the conclusion of the trier of fact.

State v. Richie, 88 Hawai#i 19, 33, 960 P.2d 1227, 1241 (1998)

(quoting State v. Quitog, 85 Hawai#i 128, 145, 938 P.2d 559, 576

(1997)). "'It matters not if a conviction under the evidence as

so considered might be deemed to be against the weight of the

evidence so long as there is substantial evidence tending to

support the requisite findings for the conviction.'" State v.

Ildefonso, 72 Haw. 573, 576-77, 827 P.2d 648, 651 (1992) (quoting

State v. Tamura, 63 Haw. 636, 637, 633 P.2d 1115, 1117 (1981)).

"'Substantial evidence' as to every material element of the

offense charged is credible evidence which is of sufficient

quality and probative value to enable a person of reasonable

caution to support a conclusion." Richie, 88 Hawai#i at 33, 960

P.2d at 1241 (citation omitted).

To support Capobianco's conviction for Murder, the

State of Hawai#i (State) needed to establish that Capobianco

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intentionally or knowingly caused Scott's death. See HRS

§ 707–701.5.

There was a wide range of evidence adduced at trial,

including 75 trial witnesses, and the evidence included, but is

not limited to, the following. Linda Puppollo (Puppollo), Clinic

Manager for Planned Parenthood of Maui, testified that she met

with Scott and Capobianco on October 25, 2013. Scott was

pregnant with Capobianco's child. Puppollo testified that

Capobianco told her that he was not "with" Scott, but he guessed

he was the father of the child; she described Scott's reaction as

being "in pain" and "definitely feeling bad about it." As

Puppollo was going through all of the options, including

alternatives to abortion, Capobianco blurted out, "But we're

going to go through with it, aren't we?" After Capobianco left

the room, pursuant to Planned Parenthood protocol, Puppollo asked

Scott "if she really wanted to do this," and Scott replied that

she was not sure, but would make the appointment for an abortion.

Scott never showed up for the appointment, Planned Parenthood

telephoned her, and a second appointment was scheduled. Scott

did not show up for the second appointment. A further call was

placed to Scott, but she did not reschedule.

Capobianco's then-girlfriend testified that in January

of 2014, Capobianco told her Scott was pregnant. The girlfriend

was upset and did not want to communicate with him for a few

days, although Capobianco attempted to make contact with her.

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When they did speak, Capobianco said he loved her, and she told

him she did not want to be a stepmom. Ultimately, she said she

would work it out with him. He told her he was not ready to have

a child.

One of Scott's half sisters testified that, in December

of 2013, when she texted Capobianco after learning about Scott's

pregnancy, he called her and said that he had thought Scott had

agreed to take care of it. Capobianco said it would ruin plans

he had with a current girlfriend.

Scott was last seen by family members on Sunday,

February 9, 2014, between 7 p.m. and 8 p.m. Family members

testified to growing concerned when she was not in contact with

them the next day (Monday, February 10, 2014) as had been

expected, and they could not find her or her vehicle; they called

the police. One of Scott's sisters testified that on the morning

of Tuesday, February 11, 2014, she went to see Capobianco at his

job at Mana Foods (Mana Foods) to ask if he had seen Scott.

Capobianco told her he had last seen Scott on the evening of

Sunday, February 9, 2014, when Scott had gone with him toward

Hâna to get his vehicle, a white Toyota 4Runner (White SUV),

which Capobianco said had been broken down there.

Scott's vehicle, a champagne-colored Toyota 4Runner

(Scott's 4Runner) was found burned and destroyed in an

agricultural area at Pe#ahi on February 12, 2014. On February

15, 2014, fragmented human remains were found at Nua#ailua Bay; a

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jawbone was later forensically identified as Scott's. Expert

testimony included that Scott's death was most likely a homicide,

and the time range for her death was from the night of Sunday,

February 9, 2014 into the next morning, Monday, February 10,

2014. Based on an analysis of collected larvae, or maggots,

samples collected from evidence recovered at Nua#ailua Bay,

including Scott's blanket, one of the State's experts testified

that it appeared that the remains were obscured for a time, from

the night of February 10, 2014, to the morning of February 12,

2014, due to an observed interruption in the larvae activity,

which could be consistent with the remains being wrapped in

something like Scott's blanket.

During the time that Scott was missing, and after her

remains were discovered, Capobianco had multiple discussions with

various members of Scott's family, mutual friends, Capobianco's

Mana Foods co-workers, as well as separate talks with Maui Police

Department (MPD) detectives.

MPD Detective Wendell Loo (Detective Loo) testified

that he was assigned to a missing persons case involving Scott on

the morning of February 11, 2014. Detective Loo spoke with

Capobianco by phone on February 11, 2014, and Capobianco

voluntarily came in to MPD's Wailuku station and met with

Detective Loo and Detective Dennis Lee on the morning of February

12, 2014, for an approximately 35-minute-long interview.

Detective Loo had a second interview with Capobianco later on

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February 12, 2014, joined at that time by Detective Leif Adachi.

On February 28, 2014, Detective Loo, joined by Detective B.J.

Gannon, conducted a third interview with Capobianco. All three

interviews were recorded. In the police interviews, Capobianco

indicated that he had gone to Hâna with Scott on the evening of

February 9, 2014, to retrieve his White SUV, which he said had

broken down there the night before (February 8, 2014) and had

been left on the side of the road.

One of Capobianco's co-workers at Mana Foods testified

that she knew Capobianco from work and she knew various vehicles

that Capobianco had driven to work. She testified that some time

between 9:30 p.m. and 11:30 p.m. on Sunday, February 9, 2014, she

saw Capobianco in the area of Hâna driving a different 4Runner,

not his White SUV (which was also a 4Runner). She noted it had

different "edges," and she thought it looked "silver."

Another expert witness for the State, F.B.I. Special

Agent Michael Easter (Special Agent Easter), "qualified as an

expert in the field of historical cellular telephone site

analysis." Special Agent Easter testified that cell phone data

showed Capobianco's phone in an area consistent with his Ha#ikû

residence on the evening of February 8 and early morning of

February 9, 2014. The data was consistent with Capobianco being

at work at Mana Foods on the morning of February 9, 2014. It

showed Capobianco's phone near the Nua#ailua Bay area on the

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night of February 9, 2014, as well as returning to the area

multiple times on February 10, 11, and 12, 2014.

According to witness testimony, Capobianco told people

that he had left Scott on the road when they were both driving

back separately from Hâna, after he retrieved his White SUV.

However, trial witnesses contradicted Capobianco's accounts of

car trouble that required him to abandon his White SUV by the

side of the road near Hâna on the night of February 8, 2014, thus

needing Scott's assistance to go back and retrieve it the next

night. Special Agent Easter testified that the phone records

showed Capobianco was not in eastern Maui before February 9,

2014, but was instead in Ha#ikû at his residence, as noted above.

A bank's surveillance footage from the morning of February 9,

2014 appeared to show Capobianco driving his White SUV in Pâ#ia,

on his way to work at Mana Foods, which was also inconsistent

with Capobianco's account that he had left the vehicle broken

down on the side of the road the previous evening.

Capobianco's statements to witnesses explaining

injuries he received near the time of Scott's disappearance were

also inconsistent. He told MPD interviewers that his injuries

were burns from working as a baker, plus that he was injured

working on his truck's window. He told a co-worker that a

friend's car window cable wrapped around his hands while he was

working on the friend's car. He told another co-worker that a

car window fell on his hands while he was working on it with a

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friend. Witnesses noted instances in which Capobianco spoke of

Scott in the past tense, before her remains were discovered.

Evidence was presented that Capobianco tried to dissuade

searchers from searching the Nua#ailua Bay area in the days after

Scott's disappearance, claiming that he already searched the area

without finding Scott.

When considered in the strongest light for the

prosecution, there was evidence of sufficient quality and

probative value to enable the jury to conclude that Capobianco

intentionally or knowingly caused Scott's death; thus, there was

sufficient evidence to convict Capobianco of Murder.

To support a conviction here for the Arson charge, the

State needed to prove that Capobianco intentionally or knowingly

set fire to or caused Scott's 4Runner to be burned without

Scott's consent, and that the damage to the 4Runner was more than

$1,500.00. HRS § 708-8252(1)(b). Capobianco makes no separate

argument concerning the insufficiency of the evidence supporting

his conviction on this charge, instead relying on the general

argument that the evidence was inadequate to link the Murder and

Arson to him.

The State adduced evidence to establish a time for the

burning of Scott's 4Runner from people living near the site where

Scott's 4Runner was found in Pe#ahi, who smelled smoke in the

early morning hours of Monday, February 10, 2014. By

Capobianco's own accounts, on the evening of February 9, 2014, he

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had left Ha#ikû with Scott in Scott's 4Runner to head toward

Hâna. His co-worker testified that she saw him in the area of

Hâna at sometime between 9:30 p.m. and 11:30 p.m. at night on

February 9, 2014, driving a different 4Runner from his own White

SUV.

Maui Fire Department (MFD) employee James Blando

(Blando) testified to being a trained MFD fire investigator. He

conducted an "origin and cause" investigation on Scott's 4Runner.

Blando testified that Scott's 4Runner was burned with an

"ignitable liquid" both inside and outside. Blando testified

that, based on "burn patterns, intensity burn patterns, more than

one fire occurring in the passenger [compartment] and on top of

the vehicle, it is my best opinion that this fire was

intentionally set."

When all of the evidence is viewed in the light most

favorable to the State, there was credible evidence of sufficient

quality and probative value to enable the jury to find Capobianco

guilty of Arson.

(2) It is undisputed that the State played a portion

of audiotape that had been previously ruled to be inadmissible.

The portion of the tape that was supposed to have been redacted

included a statment by Capobianco to the police that he had slept

with one of Scott's sisters after his relations with Scott had

ended.

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The State had prepared written transcripts of Detective

Loo's recorded interview with Capobianco and an audio recording

of the interview to play out loud during the detective's

examination. It is undisputed that the written transcripts

provided to the jury appropriately redacted that portion of the

interview in which Capobianco mentioned that he had slept with

Scott's sister, in accordance with the Circuit Court's ruling

that the statement was inadmissable. The audio that was played

in the courtroom, however, included the statement. On the tape,

Capobianco had been asked by Detective Loo if he was still in

communication with the sister during the time frame preceding

Scott's death, and he said no. When asked why not, he said:
A. There's a little bit of history there. And I tried not
to talk to [sister] a lot because after I broke up with
[Scott], I ended up sleeping with [sister] a couple of
times, and it just kind of set the family off. They didn't
like that, obviously.

So I -- me and her kept in communication because we were
still friends. Everything was fine between us, but her
family just did not like me, so –

Q. Okay. So when was the last time you were intimate with
[sister]?

A. Years ago. It was right --

At that point, the recording was stopped and

Capobianco immediately objected and asked to approach the bench.

The State promptly agreed and discussed that an earlier redaction

was made, but it did not seem that this portion had been

redacted. It was confirmed that the improper materials had been

properly redacted from the printed copies, but not from the tape.

After discussion with counsel, in which defense counsel

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emphasized that he did not want the court to repeat or call

attention to the particular statement, the Circuit Court said

that it would "pick up on a line that's innocuous and tell them

everything after that, from that point is stricken. We're not

repeating it." The court then noted:
And I guess to complete the record, what happened here
was one -- all of the parties worked on a redaction of
something that was in the original transcript that appeared
at the end of this recorded statement and at the end of the
transcript. It was agreed that that item be redacted. That
was done during the last recess.

And so what it appears -- what appears to have
occurred is the transcript is correct, but the audio
recording itself -- that was -- that was used for the
redaction turned out to be not the last version of the
redacted statement.

. . .

So this remained. So I understand how this happened,
because you folks were scrambling to get this done during
the recess.

After the attorneys and the court agreed to strike

everything from before the question about the sister, the jury

was then instructed:
THE COURT: Ladies and gentlemen of the jury, we're
just about to adjourn, but I -- there's one thing I needed
to note for the record and to give you an instruction on.

When you were listening to the recorded statement, I
am ordering that after the following question and answer
that I'm about to read to you, everything after that that
was played is ordered stricken and the -- so the last
question and answer that you may consider would be:
Question: After the fact? All right. Um, so with [Scott],
obviously her family found out, right? Answer: Yeah.

Everything after that that was played, the Court is
ordering that it be stricken and not considered by you in
any way in your consideration of this case. So please keep
that in mind.

And I don't think there's a need to revise the written
statement that you were provided as an aid, but we'll
double-check that to make sure. And we will have a
corrected copy of the recording such that it accurately
reflects what you can hear and consider.

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So please keep in mind that instruction. And again,
I'll give you an instruction at the end of the case
concerning how you're to -- what you're to do with evidence
that's stricken. But I've already told you before, evidence
that's stricken is not evidence. All right. So please keep
that in mind.

Ladies and gentlemen, thank you so much for your
cooperation today. Please keep in mind my cautionary
instructions. They remain in effect.

Prosecutorial misconduct includes any improper action

by a prosecutor, however harmless or unintentional. State v.

Maluia, 107 Hawai#i 20, 25, 108 P.3d 974, 979 (2005). However, a

conviction will not be overturned if the prosecution's misconduct

was harmless beyond a reasonable doubt. Id. at 27, 108 P.3d at

981.
[W]henever a defendant alleges prosecutorial misconduct,
this court must decide: (1) whether the conduct was
improper; (2) if the conduct was improper, whether the
misconduct was harmless beyond a reasonable doubt; and (3)
if the misconduct was not harmless, whether the misconduct
was so egregious as to bar reprosecution.

Id. at 26, 108 P.3d at 980.
In order to determine whether the alleged prosecutorial
misconduct reached the level of reversible error, [an
appellate court considers] the nature of the alleged
misconduct, the promptness or lack of a curative
instruction, and the strength or weakness of the evidence
against defendant.

State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502 (1992).

Here, the State's conduct in playing a portion of the

audio recording that was excluded by the court's ruling on a

motion in limine was improper, and therefore, constituted

prosecutorial misconduct. However, as the Circuit Court noted,

the inclusion of the omitted portion was simply a mistake in the

rushed preparation of the audio recording and printed transcript

during a court recess. The court promptly gave a curative

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instruction that was tailored to specifically address defense

counsel's concern that the precluded statement not be repeated.

The court's instruction also directed the jury to the written

transcript, which did not include the precluded statement. The

jury was reminded that stricken evidence is not evidence.

Finally, while the evidence against Capobianco was circumstantial

evidence, it was extensive and overwhelmingly supported the

jury's verdict. Accordingly, we conclude that there is no

reasonable possibility that this incident might have contributed

to Capobianco's conviction.

Capobianco alleges that there were other incidents of

misconduct, including that the prosecution allegedly elicited

testimony from witness Adam Gaines (Gaines) that Capobianco was a

drug dealer. Capobianco cites "ROA Dkt. 205 PDF transcript

August 12, 2016 p 3-58" as the place in the record where the

alleged misconduct occurred. However, JROA DKT 205 is not a

transcript. A review of the transcript from the morning of

August 12, 2016 includes some continued direct examination of

Gaines by the State, which includes no reference to pot or

marijuana, followed by cross-examination of Gaines by

Capobianco's attorney. In the cross-examination, Capobianco's

attorney asked Gaines about "grow lights" at the house he once

shared with Capobianco. Defense counsel asked, for example, "You

said that one of the reasons why you were interested in living

there was to benefit from the product of those grow lamps,

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right?" After Gaines said, "Yeah. Correct." Defense counsel

asked him what he meant by that, to which Gaines responded that

he and Capobianco were partners. Defense counsel next asked, "So

you were a pot dealer, right?" Gaines responded, "No. I was a

pot grower." Capobianco points to nothing in the record

indicating that the State improperly elicited testimony from

Gaines that Capobianco was a drug dealer. We reject Capobianco's

argument that the State committed prosecutorial misconduct by

doing so. We similarly reject Capobianco's vague and unsupported

arguments that the State made remarks and misstatements that

cumulatively deprived Capobianco of a fair trial.

(3) Capobianco contends, on two grounds, that he did

not receive a fair trial by an impartial jury.

"The United States Constitution and the Hawai#i

Constitution guarantee the accused in serious criminal cases a

fair trial by an impartial jury." State v. Pitts, 146 Hawai#i

120, 129, 456 P.3d 484, 493 (2019) (citation omitted). "Because

the right to an impartial jury in a criminal trial is so

fundamental to our entire judicial system, it therefore follows

that a criminal defendant is entitled to twelve impartial

jurors." Id. (citations omitted).
A motion for a new trial based on juror misconduct can
be based upon (1) failure of one or more jurors to respond
truthfully to questions posed during voir dire, or (2)
misconduct by one or more jurors during the course of the
trial. In either event, the ultimate inquiry is whether the
misconduct deprived the defendant of the fundamental right
to a trial by twelve impartial jurors. If any member or
members of the jury was shown not to be impartial, the trial

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court's failure to grant a new trial is an abuse of
discretion.

State v. Adams, 10 Haw. App. 593, 599, 880 P.2d 226, 231 (1994)

(citations omitted). The Hawai#i Supreme Court has further held:
[W]hen a defendant in a criminal case claims a deprivation
of the right to a fair trial by an impartial jury,

the initial step for the trial court to take . . . is
to determine whether the nature of the [alleged
deprivation] rises to the level of being substantially
prejudicial. If it does not rise to such a level, the
trial court is under no duty to interrogate the jury.
. . . And whether it does rise to the level of
substantial prejudice . . . is ordinarily a question
committed to the trial court's discretion[.]

Where the trial court does determine that such
[alleged deprivation] is of a nature which could
substantially prejudice the defendant's right to a
fair trial, a rebuttable presumption of prejudice is
raised. The trial judge is then duty bound to further
investigate the totality of circumstances surrounding
the [alleged deprivation] to determine its impact on
jury impartiality. The standard to be applied in
overcoming such a presumption is that the [alleged
deprivation] must be proved harmless beyond a
reasonable doubt.

State v. Furutani, 76 Hawai#i 172, 180–81, 873 P.2d 51, 59–60

(1994) (citations omitted).

Capobianco first argues that the Circuit Court erred in

denying Capobianco's motion for new trial because the jury

disobeyed the court's instruction not to discuss the case, and

instead, the jury impermissibly engaged in one-on-one telephone

communications with each other after hours.

The following summary is not in dispute. After

approximately nine days of deliberations, on December 13, 2016,

the Circuit Court received a jury communication that the jury was

deadlocked and requesting a time to convene in court to announce

that they could not reach a decision (Deadlock Communication).

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About fifteen minutes after the jury was allowed to leave for the

day, one of the jurors called the bailiff and stated that she had

a concern about the Deadlock Communication. The next day, with

the parties present, the court convened and proposed that the

juror, with careful instructions not to discuss jury

deliberations and other matters related to jury confidentiality,

be brought in to court to reveal the nature of the information,

with possible follow-up questions by the court and the parties.

Upon inquiry, neither party objected.

After being given further individualized instructions

on how to proceed, the juror stated that the Deadlock

Communication had not been revealed to the jury before the

written communication was sent to the Circuit Court. The juror

expressed concern that she had not had any input to that

communication and felt that other jurors had the same concern.

The court asked the juror whether she had discussed the issue

with any of the other jurors. The juror said yes, she had called

nine of the other jurors and expressed concern about the Deadlock

Communication. After the juror left the discussion, defense

counsel suggested that the juror's response warranted a jury

communication asking the jury if more time would be helpful. The

court asked each party whether they would like to first ask that

juror or another juror any questions. Both parties said no.

After gathering its thoughts, the Circuit Court

proposed a jury communication asking the jury whether further

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deliberations would assist the jury in reaching a verdict, or

whether the jurors were hopelessly deadlocked on both counts and

unable to read a verdict. Both parties agreed, the communication

was sent, and some time thereafter (the same day), the court

received a further communication that the jury had decided to

continue to deliberate and that another juror wished to speak

with the court. After the parties and the court agreed to

proceed in accordance with the same procedure as earlier in the

day, the second juror indicated that she was the foreperson and

had made a decision to stop deliberations, but after further

discussion, the jury decided to continue deliberations and

further review the court's instructions. The parties were given

an opportunity, but declined, to ask the foreperson any

questions. The court proposed that no further instruction be

given based on that communication and, upon inquiry, the parties

did not object.

The Circuit Court denied Capobianco's post-trial motion

for a new trial based upon the above juror misconduct. At the

hearing on the motion, the court reviewed the proceedings held on

December 14, 2016, and noted that the jury continued its

deliberations and reached its verdict on December 28, 2016.

Assessing Capobianco's argument of prejudice in light of State v.

Chin, 135 Hawai#i 437, 353 P.3d 979 (2015), the Circuit Court

found and concluded that the general nature of the first juror's

communications with the bailiff and the other jurors, which was

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only to express concern as to whether the jury was in fact

deadlocked, could not have substantially prejudiced Capobianco.

The Circuit Court specifically found that there was no indication

that any of the improper communications involved the matters

subject to the jury's deliberations, and noted that the parties

were given an opportunity to question jurors and declined to do

so.

In Chin, the supreme court held that, in situations

involving communications constituting potential jury misconduct,

a trial court should make "(1) an initial determination that the

outside influence is of a nature that could substantially

prejudice a defendant's right to a fair trial and, once that

general nature has been established, (2) an investigation of the

totality of the circumstances," in accord with State v. Furutani.

Chin, 135 Hawai#i at 445, 353 P.3d at 987; see also Furutani, 76

Hawai#i at 180–81, 873 P.2d at 59–60. Here, the Circuit Court

engaged in the inquiry, as directed by the supreme court.

Capobianco then had the initial burden of making a prima facie

showing that the general nature of the subject conduct could have

substantially prejudiced his right to a fair trial. Furutani, 76

Hawai#i at 180-81, 873 P.2d at 59-60; Chin, 135 Hawai#i at 446,

353 P.3d at 988. We cannot conclude that the Circuit Court

clearly erred in determining that Capobianco failed to carry this

initial burden. We conclude that the Circuit Court did not abuse

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its discretion in denying Capobianco's motion for a new trial

based on juror misconduct.

Capobianco also argues that he was prejudiced and

deprived of due process by the Circuit Court's break in

deliberations from December 21, 2016, to December 27, 2016, and

that the Circuit Court abused its discretion in not granting him

a new trial on that ground. HRS § 635-32 (2016)4 grants a trial

court discretion to separate a jury during deliberations, and a

defendant bears the burden of proving reversible harm as a result

of jury separation. See State v. Kanae, 89 Hawai#i 198, 202, 970

P.2d 506, 510 (App. 1998). The "separation of a jury during

deliberations does not constitute prejudicial conduct as a matter

of law, 'but is simply a circumstance which, with other

circumstances, ought to be taken into account by the court in

determining whether or not a new trial should be granted.'" Id.

(citing Kealoha v. Tanaka, 45 Haw. 457, 469–70, 370 P.2d 468, 475

(1962)). "Moreover, . . . 'the best reasoned cases have held

that there must be some evidence of other misconduct, in addition

to the mere fact of separation, which has operated to the party's

4
HRS § 635-32 provides:

HRS § 635-32 Segregation during trial. It shall not
be necessary in any case for any trial jury after having
been finally accepted and sworn to try the cause, to be
segregated, locked up, or otherwise confined at any time
prior to retiring to deliberate upon their verdict; provided
that the court may in its discretion order and direct that
the trial jury in any case shall be segregated, locked up,
or otherwise confined after being finally accepted and sworn
to try the cause and until a verdict is arrived at or the
jury discharged.

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prejudice.'" Id. "In meeting his burden, Defendant must adduce

'some evidence of other misconduct . . . which has operated to

the party's prejudice.'" Id.

Here, the Circuit Court explained its factual and legal

reasons for denying the motion for new trial based on the jury's

separation from December 21, 2016, to December 27, 2016. The

court first noted for the record that December 21, 2016, was a

Wednesday, while the upcoming Saturday was Christmas Eve, Sunday

was Christmas Day, and Monday, December 26, 2016, was a State

holiday, and thus the jury would not have been deliberating

during half of the recess time period in any event. The court

explained that the jury had been involved in this case since the

previous May, had been actively deliberating into the week

leading to Christmas, and that it was "appropriate to give the

jurors some time to enjoy the Christmas holiday with their -–

with their families." The court addressed Capobianco's argument

that the recess came after the Deadlock Communication, and

pointed out that the Deadlock Communication came on December 13,

2016, but the jury had agreed to continue deliberations on

December 14, 2016, and had thereafter, for several days, actively

deliberated the case with no further indication of being unable

to reach a verdict. The Circuit Court considered Capobianco's

arguments and the circumstances of this case in light of other

cases involving pauses in deliberation, and noted that it had

"repeatedly reminded the jurors throughout the entire trial of

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the case of the rules related to not reading, watching, or

listening to any news accounts. That had been done many, many

times throughout the trial." The court found that Capobianco had

only offered "mere speculation that the jurors might have been

somehow exposed to and have actually read news accounts or

watched news accounts about the case. There's absolutely nothing

on the record to support that."

Upon review of the entire record in this case, we

conclude that the Circuit Court did not abuse its discretion in

denying Capobianco a new trial based on this recess in jury

deliberations.

For these reasons, the Circuit Court's December 7, 2017

Second Amended Judgment is affirmed.

DATED: Honolulu, Hawai#i, April 6, 2021.

On the briefs:
/s/ Katherine G. Leonard
Gerald T. Johnson, Presiding Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Mark R. Simonds, Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorneys, /s/ Clyde J. Wadsworth
County of Maui, Associate Judge
for Plaintiff-Appellee.

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