A Washington Township man convicted of manslaughter for the shooting death of his wife is seeking a retrial based on the claim his attorneys failed to pursue a certain defense.

Matthew Mollicone’s attorney, Mark Kriger, contends Mollicone’s attorneys, Stephen Rabaut and Peter Torrice, should have argued that Mollicone showed no malice toward his wife, Kimberly, when she was fatally shot in July 2022 during a shoot-out at the Ray Township home of his Kimberly’s paramour, Daniele Giannone. The fatal shot was fired by Giannone, who was returning fire from Matthew Mollicone’s gunshots.

Rabaut testified at a hearing Friday in Macomb County Circuit Court that he believed at the time his arguments of “causation” and self defense were sufficient.

He acknowledged he also “could” have argued that his former client showed no intent of malice toward his wife when the pair drove to Giannone’s home for Mr. Mollicone to confront him, despite apparent multiple attempts by Kriger to get Rabaut to say he “should” have argued lack of malice when he and Torrice filed a directed-verdict legal motion. That motion for an acquittal took place immediately after the Macomb prosecutors rested their case and before the defense began its case, though Judge Matthew Sabaugh delayed ruling until after the jury delivered its verdict.

“At that point in time, it didn’t seem like — to me and Mr. Torrice — that it (lack of malice or intent) was as strong of an issue as causation,” Rabaut testified. “I certainly can say it would’ve made it a stronger argument.”

Rabaut, a lawyer for 44 years, 39 years exclusively in criminal defense, is one of the most-retained attorneys in high-level cases in the county.

Mollicone, who is currently housed at the Macomb Correctional Facility in Lenox Township, was convicted of manslaughter, attempted murder and multiple felony firearm possessions last year by a circuit court jury following an eight-day trial in the county courthouse in Mount Clemens. He was sentenced by Sabaugh to 12 to 40 years in prison.

Kriger is making the argument on the manslaughter conviction by the jury, which rejected the original charge of first-degree felony murder.

“There could be no defensible, logical reason for trial counsel’s failure to move for a directed verdict as to Count I (originally felony murder) on the insufficiency of the evidence of malice, no strategic downside for making the argument, nothing to be gained by sitting by,” Kriger wrote in a post-trial legal motion. “Simply put, counsel simply missed the boat.

“While the circumstances certainly created an atmosphere of peril, including to Ms. Mollicone and other bystanders as well, it can hardly be said that such an outcome was ‘probable,’ or ‘more likely than not,’ much less that Mr. Mollicone knew this to be the case.”

He said if the defense attorneys had made that argument, Sabaugh would have dismissed the first-degree murder charge outright.

In response, Assistant Macomb Prosecutor Emil Semaan said in his legal brief the evidence proved malice on Mollicone’s part, that he created a “very high risk of great bodily harm to the victim, knowing that death or great bodily harm were the probable result of his actions,” which is an element of second-degree murder.

“The defendant wants a second bite at the apple because he didn’t like the outcome of the trial,” Semaan wrote. “Defendant wishes he had put on a different case given the outcome. However, it is easy to be Monday morning quarterbacking defense counsel’s actions and strategies.”

Kriger contended that if Sabaugh had granted the directed-verdict motion to throw out the first-degree murder charge, the damaging witness testimony of alleged abuse of Kimberly Mollicone by her husband would not have been allowed in. At least two witnesses testified of prior abuse.

“Whatever the merits of the court’s decision to allow such testimony, had a motion for directed verdict as to the homicide count been made successfully, the basis for the court’s admission of such evidence under (state law) would have been gone, and that evidence inadmissible,” Kriger said. “Because of the prejudicial impact of the admission of the ‘other acts’ evidence without the unproved murder charge to support it, the court should vacate the remainder of the defendant’s convictions and sentences, as well.”

Although the affair had ended years before the shooting, according to Giannone, investigators discovered in the months prior to the incident about $60,000 was transferred from the accounts of the Mollicone’s company, State Barricades, to Giannone’s accounts in about a dozen transactions. Giannone said the money was gifted to him by Kimberly, while the defense claimed Giannone stole it.

The hearing is scheduled to continue May 13, when Torrice, Mollicone’s second trial attorney, is scheduled to take the stand.

Giannone’s lawsuit against Mollicone and his wife’s estate is on hold pending the outcome of the new-trial request.

Attending Friday’s hearing were a half-dozen supporters of Mr. Mollicone and the mother and sister of Kimberly Mollicone.

In an unrelated matter, Giannone was accused last month of leading police on a several-mile vehicle chase that began in Harrison Township and ended in Chesterfield Township, where he was caught in possession of drugs, according to the Macomb County Sheriff’s Office. He faces charges of third-degree fleeing and eluding, two counts of possession of narcotics and resisting arrest, all low-level felonies.

He is scheduled for an April 28 probable-cause conference in 41B District Court in Clinton Township.

Deputies tried to stop Giannone because they learned he had an outstanding warrant for a separate Jan. 26 incident in Macomb Township for which he was charged with failure to stop at a traffic accident, operating a motor vehicle without insurance and unlawful license plate registration, all misdemeanors.

No hearing date has been set in 41A District Court in Shelby Township.