Attempted murder conviction against Carlucci dropped

Thursday, July 22, 2004 | 9:21 a.m.

A man convicted of attempted murder for attacking and prompting a Metro Police officer to shoot him saw that charge dropped in an unusual post-conviction plea agreement Wednesday.

Although a Clark County jury convicted Michael Carlucci, 34, on charges of attempted murder with a deadly weapon and assault with a deadly weapon for the Jan. 30 attack on Officer Noe Larios, Carlucci now only faces the assault charge.

That means Carlucci, who once faced 8 to 20 years in prison, now has a chance at probation at his Aug. 5 sentencing that at most could get him 2 to 5 years in prison.

Under the terms of the post-conviction dismissal of the attempted murder charge Carlucci gave up his right to appeal.

The move was unusual enough to prompt District Judge Donald Mosley to say he "hoped (it) wasn't setting a precedent."

Chief Deputy District Attorney Frank Ponticillo said: "In the issue of fairness and judicial economy the charge of assault is the appropriate charge here. This (the dismissing of the attempted murder charge) saves the taxpayer the expense of defending an appeal on an attempted murder charge that may not be upheld by the Nevada Supreme Court."

Ponticillo said even though a jury did find beyond a reasonable doubt that Carlucci "had specific intent to kill Lazios and took steps beyond mere preparation" to try to kill the officer, Ponticillo didn't believe the jury's conclusion would stand up under appeal.

Ponticillo said he had routinely offered the plea agreement to Carlucci from the preliminary stages of the case all the way up to the eve of his trial, but Carlucci had repeatedly refused.

Deputy Public Defender Norman Reed confirmed that the offer had been on the table before the trial, but Carlucci wasn't interested in it at that time because he believed the jury would find him not guilty.

Reed also believed the motion he was planning to file for a new trial might have been successful. Reed planned to argue Mosley was wrong not to instruct the jury they didn't have to accept Carlucci's entire police statement because it was given two days after the shooting while he was on heavy medication.

Reed said other grounds also may have existed for appeal, but he would not offer specifics.

Another argument for appeal might have been a pre-trial ruling made by Mosley stating the defense would not have access to a psychological report about Larios.

Under Metro Police policy, Larios was placed on administrative leave and was required to consult with a therapist. Lawyers for Carlucci sought a private hearing with Mosley to discuss what was in the report and whether it should be provided to the defense.

In denying access to the report, Mosley said if he were to make public what Larios discussed, it could have a 'chilling effect' in its potential for making police officers become less truthful with the information they share with therapists under the knowledge it could be brought in court.

In Pennsylvania v. Ritchie, the Supreme Court of the United States held that a private inspection of privileged records in a judge's chambers strikes a constitutional balance between the defendant's and the state's competing interests.

But Ponticello said the decision to dismiss the attempted murder charge was not done because of any fear the Nevada Supreme Court would be forced to rule on the admissibility of Larios psychological evaluation.

According to testimony at trial and information found in police reports after Carlucci provided bogus identification to Larios, who had been patrolling a parking lot.

Larios asked Carlucci to move to the front of his car, and Carlucci allegedly became angry and walked over to his car where he began "fumbling for an unknown item," according to the police report.

Larios testified at trial that Carlucci emerged from the car with a knife and took two steps toward him. Larios said his training as to when to use deadly force called for him to shoot Carlucci once Carlucci got within 21 feet.

Larios shot two rounds at Carlucci before disarming him. Carlucci was taken to University Medical Center, where he was treated. Larios was placed on paid administrative leave after the incident and was later cleared of any wrongdoing