Ciccone bound over to trail on murder charges

Tuesday, January 13, 2004

Judge John Sellman determined there is sufficient evidence to charge Albert Ciccone with two counts of first degree murder in the death of his pregnant wife, Kathleen Terry, and has ordered Ciccone be bound over to District Court. It is alleged that he ran down his pregnant wife on a rural road near Tipanuk last October.

Elmore County Prosecutor Aaron Bazzoli called the last of his witnesses Monday, Detective Cathy Wolfe with the Elmore County Sheriff's Office, concluding five separate days of testimony during the preliminary hearing.

Wolfe said her first encounter with Ciccone was in the field, less than a mile from the scene of the incident where he was with ISP Trooper Rand Oloso, rescue/extrication director Alan Roberts and the ambulance crew. His demeanor seemed calm, she said. She noticed blood on his hand and inquired about it. Ciccone explained that his nose had been bleeding and he had used his hand to wipe it.

At the scene of the incident, Wolfe saw the yellow Dodge Neon with two colors of red-'ish' substance on the vehicle. Wolfe said she believed the substance to be blood on the right front and passenger side of the vehicle, on the hood, headlight, windshield and passenger side door post near the roof.

In her interviews with Ciccone Wolfe said he told her that he and his wife, Kathleen, had gone to Mountain Home Air Force Base for a marriage counseling session and then to the ER for his wife to be checked by a physician. He explained that Kathleen was pregnant and she had been unable to keep food in her stomach.

The couple then stopped at the Burger King near exit 90 and purchased food, planning to go to Kathleen Russell's residence to eat together. But, along the way, they stopped because Kathleen wanted out of the car when they had a 'tiff.' During the disagreement Kathleen had thrown her food at him. He went on to say that she got out of the car, shut the door and began walking towards the Shaw residence on Ditto Creek Road.

As she walked away, he undid the seatbelt and pulled his cigarettes from his pocket. He lit one and put the pack back and then refastened the seatbelt before driving off.

He recalled hearing two impacts and seeing his wife fly past the passenger window. He estimated he was traveling between 50-60 miles per hour at the time. He remembered seeing the body lying twisted on the ground and commented it appeared "posed like a corpse." He said he had downshifted from fifth gear into fourth when the rear end became a "little squirrelly."

At a later time, Ciccone told Wolfe that he had cleaned the food up that had been thrown at him before lighting the cigarette.

When questioned about why he was in the field, Wolfe said Ciccone had replied that he did not know. "I just walked. I didn't run."

Defense attorneys, Ed Frachiseur and Terry Ratliff's only witness called during the preliminary hearing was C.J. Nemeth, who testified that there is no speed limit sign posted on the gravel portion of Ditto Creek Road. The paved portion of the road is signed for 55. Nemeth said there is a yellow cautionary sign at the curve that says 25, but no other speed limit signs in the area.

As the prosecutor prepared to turn the case over to the judge for a determination of whether the case should be bound over for trial, he recapped the five days of testimony.

He noted Megan Shaw had testified seeing the body flying through the air, hitting the fence and finally skidding to a stop in the yard. Darlene Shaw saw Ciccone get out of the car after hitting the mailbox and walking away in the other direction.

Rescue Unit director Alan Roberts saw Ciccone walking on the road talking on his cell phone. Ciccone had waved him off saying, "She needs help more than I do." By the time ISP Trooper Oloso arrived at the scene, Ciccone had left the road.

Bazzoli noted Cpl. Fred Rice, reconstruction specialist, testified that the physical evidence at the scene indicated the vehicle was not skidding and it did not appear that there was any attempt to avoid her. Instead, it indicated he was just going right at where Kathleen was walking. Ciccone had clear view of her walking away. Evidence indicated that he had attempted to steer away from hitting the mailbox.

He pointed to the evidence of what had happened on the K&R Ranch Road -- the tire tracks indicating a "J-turn;" the food being thrown; the foot prints; her sweater and purse. He pointed out that was no indication the car was out of control at all. Bazzoli said Ciccone could have tried to avoid striking Kathleen, and noted that Ciccone knew that his wife was pregnant.

Bazzoli asked the judge to bind Ciccone over on two counts of first degree murder.

Defense attorney Terry Ratliff asked the judge to find the incident was just a tragic accident -- voluntary manslaughter at most. He said Ciccone had shown no intent to kill another human being. There was noting to show the "malice of forethought" necessary for a murder charge.

Ratliff said that in "the heat of passion" resulting from the 'tiff' when food had been thrown at him, the greatest charge that could be considered was vehicular manslaughter.

"Albert suffered a loss and his testimony has been consistent with an accident. There is no indication of planning … The couple were attempting to reconcile."

Judge Sellman pointed out that the preliminary hearing was not a trial and was not to determine guilt. But he did find that there was sufficient evidence for two charges of first degree murder against Ciccone and ordered the case to be bound over for District Court.

The defendant will have an opportunity to enter a plea on Feb. 2, at 1:30 p.m.

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