APPEAL from the Circuit Court of Cook County; the Hon. HERBERT
C. PASCHEN, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 24, 1968.
In a jury trial in the circuit court of Cook County, defendants, Thomas Durso and Michael Gargano, were convicted of the murder of Anthony Moschiano on January 21, 1964. They were sentenced to the penitentiary for a term of not less than 100 nor more than 150 years.
Anthony Moschiano was a narcotics addict. His body was found in the Des Plaines River on April 14, 1964, and cause of death was established as a stab wound of the left lung and aorta inflicted by a sharp-edged instrument sufficiently broad to cause a 2 1/4-inch laceration. It is the State's contention that the decedent was killed by defendants for failure to account to them for the proceeds of narcotics which they had given him to sell and also because they suspected him of being an informer.
To prove the murder and the motive 39 witnesses were presented, many of them narcotics addicts, many of them police officers or Federal agents assigned to narcotics detail. Chief among these witnesses was Leonard Fiorenzo, an addict of long standing, an informer, and a criminal with a number of convictions against him. He first connects the defendant with the decedent, Moschiano, on January 8, 1964. On that day Durso picked up Fiorenzo in a yellow Pontiac and inquired as to the whereabouts of Moschiano, stating that he knew Fiorenzo had been with him the last four or five days, that Fiorenzo didn't know how much trouble he was in, that his life depended on finding Moschiano. They drove to Moschiano's home but no one answered Durso's knock either at the front or back door. Durso told Fiorenzo that he had given Moschiano a lot of heroin to sell for him and he hadn't seen him for four or five days. Fiorenzo told Durso that anything he got from Moschiano, he paid for.
According to Fiorenzo, he and Durso then drove to a restaurant and picked up defendant Gargano. Both Gargano and Durso carried guns. The three of them then drove to Nancy Bourne's house where John Melkonian lived. The latter was another addict and longtime friend of Fiorenzo and the decedent. Lupe Constabile, a girl friend of the decedent, also lived there. Durso pushed his way into the house and forced Mrs. Bourne to take him to Lupe's room upstairs. Gargano stayed downstairs with Fiorenzo but Fiorenzo heard a lot of noise from upstairs as the room was ransacked and he also heard Durso yelling and telling Mrs. Bourne to shut up or he would blow her head off. When the two came back down he made Mrs. Bourne call a number and ask for Tony. Then Durso took the phone and told him to get Moschiano out on the street in ten minutes or somebody would get hurt. Gargano then went out and brought Moschiano back. Durso asked where Moschiano had been for the past four or five days, why he hadn't been in touch with him, where the stuff was and if he had sold any. Moschiano said that he had about $500 for the stuff he had sold and he took out a brown paper bag to show Durso what he had left. Durso removed the plastic bag from the brown bag, felt it and said that that was about right.
Durso then handcuffed Fiorenzo and Moschiano together, made them lie down in his car, and in about 10 or 15 minutes they stopped at a garage. They were told to remain in that position and they did so for 1 1/2 hours until Durso came back and told them he had decided to give them a pass this time, a chance to make some money selling the stuff though he didn't know why as everyone had told him Moschiano was a stool pigeon. It was decided that the stuff was worth about $2000 and that it would take about two weeks to sell, and that Fiorenzo would help. Durso told Moschiano to bring him the $500 the next morning.
On that same day, January 8, Fiorenzo and Moschiano rented a room at the Cass Hotel and split a portion of the heroin into 200 small packages. They then rented a room at the Ontario Hotel and made approximately 50 larger packages and left the stuff there, padlocking the outer door. The next morning, January 9, Fiorenzo gave another addict, Viot Cancialosi, 20 packages to sell and each day until January 14 gave him additional packages, finally receiving $200 from Cancialosi. On January 14 Fiorenzo called Moschiano and left $175 at Jimmy Green's tavern to be picked up by Moschiano. Fiorenzo and his friend, Melkonian, then went to the police station to turn themselves in to Detective Brown, for whom both Moschiano and Fiorenzo had been serving as informers. They were confined in the witness quarters of the State's Attorney for the next six days until January 20.
On their release from the witness quarters they spent the night at the Eagle Arms Hotel and on January 21 Fiorenzo ran into Durso at Jimmy Green's tavern. He told Durso he had been arrested for petty theft and had been confined for six days. He asked Durso if he had got the money he had left with Jimmy Green and Durso said Moschiano had never mentioned it to him. They checked with Jimmy Green and he told them Moschiano had picked it up within 10 minutes after Fiorenzo had left it. Durso said that Moschiano had told him that the padlock had been broken off the door at the Ontario Hotel and the stuff left there had been stolen. (Actually a Federal narcotics agent had picked up the "stuff" on January 14 after having talked with Moschiano and had identified it as 97 grams and 80 milligrams of heroin.) Durso said that Moschiano had told him he could make a kilo sale to a colored fellow on the south side and he would make it up to him. Durso then had Fiorenzo pick up Moschiano in the yellow Pontiac and the three of them headed to what was later identified as Durso's house. On the way Durso asked Moschiano about the $175, and he said he had it together with some other money which he would give him all at once. Durso had asked about the stuff that had been taken and Moschiano told him about the prospective kilo sale, but Durso said he wanted no part of that sale.
When they arrived at Durso's house Gargano was there and he too questioned Moschiano about the missing stuff. To Moschiano's plan to make good on a kilo sale Gargano said he could hardly be trusted with $15,000 when he had failed with $2000. Moschiano then proposed to pay them back at $200 a week from money obtained as a thief. At this time a Sears truck drove up and Durso called to his wife that her humidifier was here. Durso and Gargano then took Fiorenzo and Moschiano to the garage where the trunk of the yellow Pontiac was open and covered with papers on the floor and all sides. Fiorenzo was told to get in the back seat and Moschiano was handcuffed with his hands behind his back. Gargano shoved some rags in Moschiano's mouth and Durso tied a rag around his mouth. Moschiano vainly pleaded not to be put in the trunk. From his position in the back seat Fiorenzo stated he could see through the crack between the raised trunk lid and the chassis of the car and saw Durso stab downwards with a hunting knife and after a wiggling motion he could hear a gurgling sound. The knife was a hunting knife, with about a 6-inch blade, 1 1/2 inches wide and a 4-inch handle.
When Durso told Fiorenzo to get out of the car he saw Durso wiping his hands off on some rags, and Moschiano was in the trunk with blood over the front of his T-shirt and up around his face and neck. Durso told Fiorenzo he was going to let him off and that Fiorenzo could make some money selling stuff. Durso took some gloves and money from Moschiano's pockets and told Fiorenzo to look, that "this is what happens to stool pigeons and to people that short me."
Fiorenzo was then warned not to say anything and Gargano took him to the L station so he could go back to his neighborhood. He immediately called the narcotics section at police headquarters but didn't report the crime. The next morning, accompanied by his friend, Melkonian, he went to the narcotics section and in substance gave the above account to a group of officers.
We do not believe it necessary to detail the testimony of the array of witnesses presented by the State to support and confirm Fiorenzo's detailed account of his activities and meetings with defendants prior to the murder. Suffice it to say that at least one or more witnesses were presented to confirm the possession of the brown paper bag by Moschiano, the use of some of its contents by friends of Moschiano, each meeting of Durso with Fiorenzo, whether on the street, in the yellow Pontiac, or at Jimmy Green's tavern, the visit to Moschiano's home by Durso and Fiorenzo, the visit to Mrs. Bourne's home by Durso, Gargano and Fiorenzo, and all the events that occurred at that time, including ...