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People v. Moczarney





APPEAL from the Circuit Court of Cook County; the Hon. SAUL A. EPTON, Judge, presiding.


Defendant, David Moczarney, was charged by information with the offense of involuntary manslaughter in the shooting death of Noel Cordero. Following a bench trial, defendant was found guilty and sentenced to probation and work release. On appeal defendant contends that: (1) he was not proved guilty beyond a reasonable doubt; and (2) he was denied due process of law because the trial court did not allow him the opportunity to make closing arguments or to argue his motion for new trial. We affirm. The pertinent facts follow.

There is little disagreement as to the facts surrounding Cordero's death. Early in the evening of July 1, 1976, defendant, Cordero and several other young people got together at an abandoned house on Schiller Street near Wicker Park on Chicago's near northwest side. In addition to defendant and Cordero, the group included Anabil Felix, Linda Hernandez, Bratislav Lilic, Greg Szalaj and Steve Szalaj. The group was drinking and talking and defendant admitted to drinking both beer and hard liquor while he was there.

Defendant, Felix, Lilic and Steve Szalaj went to the back of the building where there was a second building on the lot. Defendant had a gun with him and Felix took the gun and fired it toward the building. Felix returned the gun to defendant and the four rejoined the rest of the group in front of the first building. There, defendant argued with Cordero. Both Lilic and Ms. Hernandez testified that defendant had threatened to kill Cordero, although Greg and Steve Szalaj testified that they merely heard defendant swearing and speaking loudly to Cordero, and Felix testified that he heard no argument at all. Cordero did not answer defendant.

Lilic testified that he then suggested that the group have a party at his home, and all seven persons left for his home in defendant's car. Lilic set up a table and chairs outside his apartment on the back porch landing. Lilic served some hard liquor to the group, which was drinking and talking on the porch. The group had arranged themselves around the small porch which measured approximately 4 feet by 9 or 10 feet. Cordero was seated on the top step of the landing and Ms. Hernandez sat on the stairway to the floor above. Felix first sat on a chair but then sat on the railing to make room for the table where the others sat.

While the group was on the porch, Lilic continued, defendant took the gun from his belt and handed it to Steve Szalaj, who removed the bullets and gave them to defendant. Defendant and Steve Szalaj then played Russian roulette with the empty gun. Lilic testified that both he and Ms. Hernandez told the two men to stop and Lilic asked for the gun. Defendant replaced the bullets and passed the gun to Steve Szalaj, who gave it to Lilic. Lilic hid the gun in his dining room and returned to the porch with a roulette game.

The group continued drinking and playing roulette and cards for a while before defendant and Steve Szalja decided to get a pizza around 9 p.m., Lilic testified. He, Ms. Hernandez and Steve Szalaj left the porch and went into the kitchen. Defendant stepped into the kitchen and asked Lilic to return his gun. Lilic hesitated, but then gave the gun to defendant, who was at the doorway leading to the porch. Lilic turned around to fix some drinks in the kitchen and heard a big bang. Thinking the noise was caused by a firecracker, Lilic headed for the porch to tell the group to stop playing around. When he stepped onto the porch, he saw Cordero slumped against the railing where he had been seated, saying he had been shot and was dying. Defendant had the gun in his hand and was saying Cordero would be all right. Defendant dropped the gun on the porch and Lilic told him to "get rid of it." Defendant helped to carry Cordero downstairs.

Greg Szalaj testified that he saw his brother, Steve Szalaj, play Russian roulette with defendant and then saw defendant reload the gun before Steve Szalaj gave the gun to Lilic. At the time of the shooting Greg and Steve Szalaj and Ms. Hernandez were in Lilic's kitchen. Lilic entered the kitchen after defendant asked him to return the gun. Greg Szalaj saw Lilic give the gun to defendant but did not see defendant put the gun inside the belt to his trousers. He saw the defendant with the gun in one hand and the money for the pizza in the other. Greg Szalaj turned briefly towards the inside of the kitchen, then heard a shot followed by a scream. He ran out onto the porch and saw Cordero against the wall, bleeding from the chest. Steve Szalaj, Felix and defendant carried Cordero down the stairs.

Linda Hernandez testified that before defendant and Steve Szalaj played Russian roulette on Lilic's back porch, defendant had taken out the gun and was waving it around. Ms. Hernandez became frightened and upset and said something to the two men. They stopped playing with the gun, but she did not see who reloaded it. Ms. Hernandez was in the kitchen with Lilic and Steve and Greg Szalaj when defendant came to get his gun. She was talking to Steve Szalaj when she heard a shot and Cordero's voice and then saw Cordero fall, bleeding.

Anabil Felix testified that he had observed defendant and Steve Szalaj playing Russian roulette until Ms. Hernandez and Lilic told them to put the gun away. Lilic had then put the gun inside the apartment. Later, Felix was sitting next to Cordero near the wall when the others went into the apartment. Defendant came back out onto the porch with the gun in his right hand, waving it up and down. Felix heard some firecrackers and looked to his right. When he looked back, he saw Cordero falling. Defendant was standing right in front of Cordero, about 3 or 4 feet away. Felix did not see defendant trip or fall and heard nothing said by either defendant or Cordero before the shooting.

Steve Szalaj testified that he had had "quite a lot to drink" when he and defendant had played Russian roulette. Defendant had reloaded the gun before they gave it to Lilic. Steve Szalaj was in the kitchen when defendant asked Lilic to return the gun and he saw neither Lilic giving the gun to defendant nor defendant leaving the kitchen. He heard the commotion on the porch and went outside, where he saw Cordero. Defendant was standing and saying "Oh, my God, I shot him."

It was stipulated that Cordero died from a wound inflicted by a bullet from defendant's gun and that the gun had been found in a garbage can in accordance with defendant's statement to the police that he had run downstairs from Lilic's porch and thrown the gun into a garbage can.

The defendant then testified on his own behalf. He stated that he had had a few drinks when he went to the house on Schiller Street. The argument there between him and Cordero was due to the fact that defendant had lent $2 to Cordero and Cordero had purchased a six-pack of beer with it. Defendant placed the gun in a paper bag in his car's glove compartment when he drove everyone to Lilic's for the party, and brought the gun with him from the car when they arrived. Before defendant and Steve Szalaj played Russian roulette, they were "betting and goofing around" about jumping from the porch to the roof. Defendant and Steve Szalaj stopped playing with the gun at the insistence of the others in the group, and the gun was turned over to Lilic.

Defendant further testified that before going for the pizza he went into the apartment to ask Lilic to return the gun. As he was stepping down out of the kitchen onto the porch with his gun, defendant stated he stumbled or tripped on the table and landed with his back side up against the stairs. The gun discharged as he was getting up. He dropped the gun, grabbed Cordero and asked the others for help. Steve Szalaj and Felix helped defendant ...

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