State v. Miceli

549 S.W.2d 113, 1977 Mo. App. LEXIS 2521
CourtMissouri Court of Appeals
DecidedFebruary 15, 1977
DocketNo. 37247
StatusPublished
Cited by8 cases

This text of 549 S.W.2d 113 (State v. Miceli) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Miceli, 549 S.W.2d 113, 1977 Mo. App. LEXIS 2521 (Mo. Ct. App. 1977).

Opinion

STEWART, Judge.

Defendant, Lillian Miceli, was tried on the charge of Murder in the First Degree, Section 559.010 V.A.M.S., arising out of the death of her husband, Anthony Miceli. She was convicted of the offense of Manslaughter, Section 559.070 V.A.M.S., and sentenced to serve ten years in the Missouri Department of Corrections. We affirm.

[114]*114Defendant contends that the trial court erred in (1) overruling defendant’s motion for judgment of acquittal in that the evidence failed to make a submissible case for the jury; (2) overruling defendant’s motion for mistrial made when the prosecutor in his closing argument commented upon defendant’s failure to make an exculpatory statement to the police officers; and (3) refusing defendant’s tendered Instruction A on self defense and in giving Instruction No. 10, MAI-CR 2.40 by the court.

In determining whether this case should have been submitted to the jury, we view the evidence in the light most favorable to the verdict. We accept as true “all evidence in the record tending to prove the defendant’s guilt, whether such evidence is circumstantial or direct in nature, together with all favorable inferences that can reasonably be drawn therefrom and disregard all contrary evidence and inferences.” State v. Chase, 444 S.W.2d 398, 401 (Mo. banc 1969).

With this principal in mind we necessarily undertake a comprehensive review of the facts. Mr. Anthony Miceli died in the early evening of June 30, 1973, at Normandy Osteopathic Hospital where he had been taken from the vicinity of his home. An autopsy revealed that Mr. Miceli had suffered two scalp wounds to the back of the head, one on the right and one on the left side. The injury on the right side was a depressed skull fracture about an inch behind and three inches above the ear. The injury to the left side was an irregular jagged wound similar to the wound on the right. There was also a fracture on the left side of the head forward of the middle of the ear “above the bone that forms the root of the left eye.” There were six stab wounds to the chest and one to the “left shoulder in the back.” The transcript does not reveal the location of all of the stab wounds.1 One of the wounds was described as “on the right side of the breast plate.” This was where a cut extended through the right pulmonary vein and artery, severing them and extended through the diaphram and into the liver. The cause of death was internal hemorrhaging, loss of blood and shock, caused by the last described stab wound.

Defendant and her husband had been separated. His car was seen in the driveway of their home at 8522 Roanoke Drive in Bel Nor on Saturday, June 30, 1973, from about 2:00 p. m. on. Mr. Miceli was seen at about 4:30 p. m. as he came down the steps of the Dischinger home which is one door east of the Miceli home. There was a trail of blood leading from the Miceli home to the Dis-chinger home. Mr. Miceli was bleeding from the nose and ears, he had lacerations of the chest and was covered with blood. As he left the Dischinger home he staggered eastwardly down the street. One of his neighbors tried to walk him to a car. He collapsed on the lawn at 8467 Roanoke Drive. Mr. Sowash, another neighbor, came up in a car and Mr. Miceli was assisted into the car and taken to the hospital. The only sounds he made on the trip to the hospital were unintelligible moans.

After Mr. Miceli left the Dischinger home a Mrs. Spillman rang the doorbell at that house. Mr. Dischinger came out and went to the rear of his house. He saw Mrs. Miceli on the patio in her back yard standing over a trash can as though she had just put something in it. She was a short distance from her back door. She was wearing a nightgown. She had blood on her shoulder, arm and left leg. Mr. Dischinger asked if he could help and she said, “Stay away.” He then went toward the front of the house. Mrs. Dischinger’s dog started barking and she went to the rear yard. When she got there she heard Mrs. Miceli’s back door slam and she saw flames coming from the trash can in the Miceli yard.

At about this time Officer Tomlinson arrived. He went to the back door of the Miceli home, knocked on the door and identified himself as a police officer. A female [115]*115voice called out, “Stay away.” The officer went to the front door which was unlocked and let himself in. He saw Mrs. Miceli standing in the kitchen with a six inch knife pointed at her abdomen. At the request of the police officer she surrendered the knife.

Mrs. Miceli was dressed in a nightgown. She was bleeding about the scalp and the abdominal area. When the officer asked where her husband was she showed him a telephone number and said, “Call my son.”

There was a pool of blood on the kitchen floor with a towel and various rags in and around it. There was also a pen lying upon the rags. There was a glass top table in the kitchen which had blood on it. On this table there were a pair of glasses, a large check book, various business papers, a pencil and a “business portfolio.” There was also a note in Mrs. Miceli’s handwriting on the table. It read, “I love my family and friends. Forgive me.”

There was blood leading from the kitchen down the hall to the front door. There were some drops of blood leading from the back door to and on the patio up to the trash can. There was no blood in other rooms in the two-story house.

A claw hammer with blood on it was found on a window sill just outside the rear door of the Miceli home. A blow from this hammer from above and behind Mr. Miceli would be consistent with the injuries found to Mr. Miceli’s head.

The defendant did not testify. Her evidence consisted of her hospital record and the testimony of Mr. Sowash. The hospital record revealed that she had multiple stab wounds about the abdomen. One of the wounds lacerated the spleen requiring its removal. “There are noted to be seven or eight small punctate wounds of the right temple 2-5 mm. in length and on investigation are felt to be quite superficial in nature.” Although the discharge note states that Mrs. Miceli suffered a mild concussion, no merition is made of a concussion in the admission notes.

Mr. Sowash testified that while driving Mr. Miceli to the hospital he asked what happened and Mr. Miceli said that, “He just got hurt, he just injured himself or something to that effect.”

There were no eyewitnesses to the assault which resulted in the death of Mr. Miceli. In a case which is based upon circumstantial evidence “the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence.” State v. Ramsey, 368 S.W.2d 413, 416 (Mo.1963). However, “the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocence[;] . the mere existence of other possible hypothesis is not enough to remove the case from the jury.” State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970).

The evidence here presents one of the strongest cases dependent upon circumstantial evidence. The jury could readily find that Mr. Miceli was intentionally killed under circumstances which could not be deemed suicidal or accidental. They could find that Mr.

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Bluebook (online)
549 S.W.2d 113, 1977 Mo. App. LEXIS 2521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-miceli-moctapp-1977.