WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
WENDELL E. GREEN, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 21, 1955.
Defendant, Michael Moretti, a Chicago police officer attached for duty with the office of the State's Attorney of Cook County, was convicted in the criminal court of said county of the murder of 15-year-old Arthur Gamino who, together with Edward Salvi, 21 years old, lost his life in a shooting that occurred during the early morning hours of August 24, 1951. The first grand jury to consider the charge against defendant returned a no bill; a second, however, endorsed and returned the indictment as a true bill. Defendant was then tried at the December 1951 term of court but the petit jury was discharged when it could not agree upon a verdict. A second trial on the charge was conducted at the January 1952 term at which time the jury found defendant guilty of murder and fixed his punishment at life imprisonment in the penitentiary. Following unsuccessful post-trial motions, judgment was entered on the verdict and the cause is now before us for review on writ of error.
The bizarre events which culminated in the death of Gamino and the judgment against defendant are centered around the loss and recovery by defendant of a .32 caliber gun. Inasmuch as many persons were involved and because the cause has been exhaustively presented and defended, the result has been a voluminous and extremely complex record, much of which must be detailed to meet the errors assigned here. Although we have read and examined the abstract minutely, we shall not summarize the testimony of each individual witness but will endeavor to set forth only the most salient facts and the points of evidence upon which there is major conflict. In approaching a summary of the evidence, it should be noted that it is the theory of the defense that Salvi, rather than defendant, fired the shot which killed Gamino, or, in the alternative, that if it was the defendant who fired the fatal shot, he did so in self-defense. On such grounds it is urged that the verdict is against the manifest weight of the evidence. The People, for their part, assert that there is ample evidence of a deliberate murder to support the jury's verdict, and they advance the theory that the killing was motivated by revenge for a beating defendant received, and for the professional embarrassment he suffered over the loss of his gun.
Turning first to the testimony of the People's witnesses concerning the events which led to the loss of defendant's gun, the record discloses that on the night of August 23, 1951, about 10:30 P.M., defendant appeared in civilian clothes at a Chicago tavern known as Tito's Hacienda. He was accompanied by Eduardo Duran and Alphonse Toribio, with whom defendant admittedly had a slight acquaintance. After several drinks were served, (and defendant denies that he had any or that he is a drinking man,) defendant inquired about one of the owners of the tavern who was absent, and then left with his two companions. The three men returned to Tito's approximately one hour later, and present upon their return were Frank Navarro, one of the owners, Joseph Soria, the bartender, George and Simon Diaz, patrons, and several other patrons, both men and women. According to the persons named, defendant intruded upon several of those present and comported himself generally in a loud and aggressive manner until Navarro remonstrated with him over his use of obscene language in the presence of the women. Immediately after this occurred defendant made some inquiry of George Diaz relative to his status in the tavern, and terminated the conversation by striking Diaz with his fist. At this Simon Diaz jumped to his brother's assistance and struck defendant, who then either ran or was pushed out the front door. The Diaz brothers followed and there ensued a fight in the street during which defendant was pummeled until he became either dazed or unconscious and fell to the pavement. Up to this point no person in the tavern except Duran, and possibly the bartender to whom defendant had exhibited a gun and a star in an unofficial manner, admitted any knowledge that defendant was a police officer.
Defendant's version of the events just related was materially different. He prefaced his testimony by stating that he was on furlough on August 23, that just prior thereto he had engaged in a conversation with his superior in the State's Attorney's office, and that he was in the area of Tito's on the night in question on official business as a result of such conversation. In the same vein, he stated that in the course of his police work he had been given the description of a man named "George" and that it was in connection with this information that he had gone to Tito's. Concerning the events of the evening in question defendant related that he had chanced upon Toribio and Duran in a tavern across the street from Tito's and that when he crossed over to the latter place, (and by his version he was in Tito's only on the one occasion that night,) Toribio followed him. When he arrived at Tito's he ordered coffee, stood at the bar looking around and, upon seeing Toribio enter, inquired of him if "George" was there. Defendant then heard someone shout: "George is my brother," and was immediately struck on the head from behind. He testified that in the seconds which followed he heard someone say: "It's that copper again;" that Toribio, reputedly a bouncer for the tavern, attacked him with fists and a bar stool; that he became unconscious and remembered nothing until later in the Maxwell Street police station at which time he discovered his money, his wallet, and a .32 caliber gun he had been carrying in his hip pocket, were missing.
The next persons to enter into the sequence of events were Maurice Castillo, later a witness for the People, and Edward Salvi, who was to become a victim of the shooting that occurred four hours later. These two young men were in a lunchroom several doors from Tito's where they had been conversing with the owner, Louis Alejandre, who was also a witness for the prosecution. According to Castillo, he and Salvi saw a commotion in the street through a window and went out to see what was occurring. On reaching the scene they observed defendant sitting in the road, bloody and dazed, with a gun in his hand. Castillo took the gun from defendant, purportedly to keep anyone from getting hurt, and departed in his car together with a girl friend and Salvi. After driving a short distance on nearby Blue Island Avenue, Castillo stopped his car and threw the gun into one of the many vacant lots in the vicinity of Polk Street and Cabrini Street. He gave as one of his reasons for so doing that he did not want to meet any police officer with a gun in his car, and testified that at the time he did not notice in just which of the vacant lots in the area he threw the gun. Thereafter, Castillo and Salvi drove the girl to her home, stopped at a restaurant where they were met and joined by Leonard Monaco, who was later to survive the shooting, then proceeded to Castillo's home several miles from the scene of the fight.
Meanwhile, back at Tito's defendant recovered consciousness and, according to Navarro to whom Castillo had shown the gun, said he would be willing to forget the whole incident if his gun was returned. Defendant denied making such a statement. Shortly thereafter police officers, whom both Navarro and Alejandre claimed to have called, arrived at the scene and, at defendant's insistence, took Navarro to the Maxwell Street police station. There the defendant identified himself as a police officer, reported the loss of his gun and other personal effects, and told the officer assigned to investigate the case, that he "was making an investigation and some fellows jumped him and took his gun." Thereafter, defendant called his superior, chief investigator Gherscovich, informed him of what had occurred, and arranged for Navarro to be taken to the State's Attorney's office. This was done about 1:00 A.M. After questioning Navarro, who was kept in custody, defendant, Gherscovich and Edward Eisner, another investigator, returned to the Maxwell Street station. Defendant testified that during his questioning of Navarro, the latter told him that George was the man who assaulted him, that George was a dope peddler and was currently in possession of ten pounds of dope. Navarro, who stated that defendant struck him and threatened to get even, admitted that defendant had questioned him concerning a dope peddler but testified that he had denied any knowledge of such a person. A police officer who heard some of the conversation between the two stated that he heard defendant ask Navarro who had the gun, and that the latter gave a name the officer could not remember.
Upon defendant's return to the Maxwell Street police station it developed that the lost gun belonged to one of his two brothers, Salvatore or Vincent Moretti, who were Chicago Park District policemen and both of whom came to the station. One was wearing a gun belt and holster and had with him a .38 caliber revolver which the defendant took, saying he wanted to have it in case he had to go out with the Maxwell Street police to continue the investigation of the lost gun. It appears too that the police closed Tito's Hacienda, removed its license from the premises and stationed an officer there when it developed that the front door would not lock. In addition the bartender, Soria, was jailed and, when testifying, stated that he was arrested by Eisner and "one of the Morettis."
While the above events were occurring, word was apparently obtained in the vicinity of Tito's that Castillo had thrown the gun in one of the vacant lots on Blue Island Avenue, because search parties of 15 to 30 people, including residents of the neighborhood and police officers from the Maxwell Street station, were searching for it in the weeds in various vacant lots along the avenue. One person so engaged was Peter Valtierra who had driven to the lots in the car of Louis Alejandre. He testified that Arthur Gamino, for whose death defendant was tried in this case, rode with him but he knew little of the boy's whereabouts after the time they arrived. Gamino, it appears, ran errands and sometimes worked in the Alejandre lunchroom. His father testified that he was 15 years old at the time of his death.
When the search for the gun first began, Toribio and Alejandre drove to the vicinity of Castillo's home and finding Castillo, Salvi and Monaco there, brought the first two named back to Blue Island Avenue to join in the search for the gun while Monaco remained in Castillo's car near the latter's home. Castillo took his dog with him and, by his version, when the dog became lost during the search, he persuaded Valtierra to drive him and Salvi back to the Castillo home so he could get his own car and conduct a search for the animal. Upon their arrival, Salvi got into the Castillo car with Monaco, while Castillo remained in the car driven by Valtierra. In his testimony, Castillo stated that he then directed the two to return to the lot to look for the gun. It should perhaps be interjected at this point that it is the theory of the defense that Castillo and Salvi were anxious to recover the gun in order to prevent it from falling into police hands with their fingerprints on it, but the testimony of Castillo and other frequenters of the area was that the purpose of the prolonged search was to find the gun and thus relieve Tito's tavern of some of the legal consequences of the affray there.
Salvi and Monaco followed the car containing Castillo and Valtierra but lost it in traffic. Salvi then drove to the vicinity of Tito's where Monaco made an inquiry for Castillo. Upon being advised that Castillo was not there, Salvi drove to the Maxwell Street station where Monaco entered and had a conversation with the desk sergeant. Following this they drove to Tito's and conversed with the policeman stationed there. They were not, however, successful in locating Castillo who, as far as the record shows, did not return to the vicinity of Blue Island Avenue that night. According to Monaco, the two then left Tito's with the intention of returning to the police station but, as they passed the vacant lot at Blue Island and Cabrini, Salvi drove the car into the lot and they got out to search for the gun. As they started searching Monaco observed Arthur Gamino, whom he did not know, start to cross the lot. The time was approximately 3:30 A.M.
Returning now to defendant at the Maxwell Street station, it appears that his brothers left and that he remained at the station in the company of Eisner and Gherscovich until approximately 3:00 A.M. when, at defendant's request, he was driven to and left at an Athletic Club known as the S.A.C. at Taylor and Miller Streets. This club is 1080 feet from the vacant lot in which Salvi and Gamino were left searching and where the killing occurred shortly thereafter. After arriving at the club, defendant called his brothers again and requested them to bring him clean clothes as he did not wish to go home and frighten his family with the torn and bloody clothes he had on. Pursuant to his request, the two brothers previously referred to, accompanied by Lawrence Moretti, a third brother who was a court bailiff, drove to the club and brought clothes into which the defendant changed. The defendant testified that his brothers then drove away and left him, but it is the People's contention that such testimony is completely rebutted by the accounts given by eyewitnesses and earwitnesses to the events which occurred within minutes after the brothers were admittedly assembled at the athletic club.
The versions of the shooting testified to by defendant and Monaco are in complete conflict in all material particulars. Thus, as the parties have done in their briefs, we shall detail them separately.
Defendant related that after his brothers left, he proceeded to walk toward Tito's with the intention of determining if there were any officers or other persons around who could give him information regarding his stolen revolver and the men who assaulted him. When he arrived at the intersection of Blue Island Avenue and Cabrini Street, he observed three men, whom he thought looked suspicious, in a bending position in front of a parked car which had its headlights lit. One of the men, who had a flashlight in his hand, straightened up and flashed the light on a gun in the other hand. When he saw the gun, defendant shouted: "Police-officer, stop," and ran toward them drawing the .38 caliber revolver he had earlier obtained from his brother as he did so. The three men said nothing but ran to an automobile parked in the vacant lot where one entered by the door on the left, or driver's side, and the other two by the door on the right. Defendant ran to the right hand door of the two-door car, swung it open and shouted: "Police-officer, step out of the car with your hands up." He then fired a downward shot which, it later developed, struck the bottom part of the open car door. At this time defendant was standing about three feet from the side of the car and immediately after he had fired the warning shot, a shot came from the car. He saw the flame of the gun, fired into the car, grabbed the hand of the man in the front seat who had fired the shot, twisted the hand, and struggled for possession of the gun. He did not know if he had hit anyone with his answering shot, nor did he remember if he kept shooting as he grappled for the gun. He did recollect, however, that there was a volley of shots fired. During the struggle for the gun, two men in the back seat of the car rose toward him, one of them with a knife. Things happened so quickly he did not remember if he had continued to fire after he had disarmed the man in the front seat, but he stated that it was possible that he had fired both guns after obtaining the second one. On cross-examination, however, he testified that he did fire in the direction of the knife. After the shooting defendant ran into Blue Island Avenue where he endeavored to stop passing motorists in order to cause them to summon the police, but, when they failed to stop, he went to a store on Polk Street where he called the Maxwell Street station, reported the shooting, gave his name and badge number, and ordered ambulances.
The only other eye-witness to the shooting was Leonard Monaco, a 21-year-old unemployed laborer, who, as previously related, went to the lot with Salvi at 3:30 A.M. to continue the search for the missing gun. His version of the shooting was as follows: Just as Arthur Gamino was crossing the lot, Monaco, who was stamping in the weeds there, stepped on a gun which he picked up and handed to Salvi. It turned out to be the .32 caliber gun which Castillo had taken from defendant and thrown away. As he handed the gun to Salvi someone shouted: "Stop, or we'll shoot, its the police." Monaco turned around and saw five or six men, some of whom were armed and had gun belts on, approaching from the direction of Blue Island Avenue. One of the men took the gun from Salvi and another shouted: "Grab that fellow," meaning Gamino. When this was accomplished the men searched the three youths then put them into the back seat of Castillo's car. Gamino sat on the right of the seat, Salvi in the middle, and Monaco on the left. The men remained outside the car talking and arguing and someone said: "Who is going to take them to the station?" ...