Detective: Off-duty federal officer didn’t use department-issued gun

09/19/2013 6:59 PM

09/20/2013 12:40 AM

A detective on Thursday testified that it appears an off-duty federal officer did not use a department-issued gun when he opened fire during a fight outside a north Modesto bar in which a fellow officer was fatally wounded.

Defendant Robert Anthony Moreno has been charged with murder in the death of fellow federal officer Daryl Chargualaf. Moreno also faces two counts each of attempted murder and assault with a semi-automatic gun.

Authorities say Moreno pulled out a gun during the fight last year and inadvertently shot Chargualaf to death. Testimony in Moreno’s preliminary hearing indicates that the off-duty federal officers were in a confrontation with Andrew and Billy Diaz outside O’Malley’s Bar in the parking lot of the shopping center at Standiford Avenue and Prescott Road.

Moreno’s preliminary hearing resumed Thursday with testimony from Modesto police detective Craig Grogan. Moreno and Chargualaf worked together as Department of Defense police officers at a facility in Tracy.

Grogan said he spoke with a supervisor at the facility, who told the detective that officers are required to leave their department-issued guns at the facility when their shifts end each day. The supervisor also said each officer is issued a 9 mm handgun to carry and use at the facility.

The detective testified that the gun believed to have been used during the fight was a .40-caliber semi-automatic handgun. He said recovered bullets and shell-casings matched the .40-caliber gun.

Police recovered the gun after a bouncer saw it fall from Moreno’s waistband during a scuffle with Andrew Diaz after the shooting, according to testimony.

Grogan also testified that the Department of Defense supervisor told him that any officer at the Tracy facility who carries a gun away from work is required to have a permit to carry a concealed weapon. The detective testified that he did not find anything to indicate Moreno had such a permit.

Investigators found a holster and an ammunition magazine in Moreno’s car parked outside the bar. Grogan testified that the holster and the ammunition magazine were consistent with the recovered .40-caliber gun.

Chargualaf was fatally wounded by gunfire, and Billy Diaz suffered three gunshot wounds, including one near his neck, Grogan said. Diaz underwent surgery and survived his injuries.

The detective reviewed security camera footage from the nearby Liquor Locker store, just east of the bar in the same shopping center. The camera is inside the business, and a portion of the parking lot outside is in view.

Grogan testified that the video shows someone matching Moreno’s description with his right arm extended and pointed in a northeasterly direction. Shortly after, the camera captures what appears to be Moreno heading back toward the bar and assisting Chargualaf, the detective said. Presumably, Chargualaf already had been injured by gunfire.

Testimony in the preliminary hearing concluded Thursday afternoon with Billy Diaz. He said he and his brother didn’t have any weapons that night, and Chargualaf didn’t brandish a weapon, either.

He also said he never joined the fight between his brother and Chargualaf; he only crouched near them at one point.

During cross-examination, Billy Diaz could not pinpoint the area in the parking lot where the fight started. He changed the location a few times while on the witness stand.

John Garcia, Moreno’s attorney, asked Billy Diaz why he would walk out of the bar and head east with his brother toward his brother’s pickup when his own car was on the north end of the parking lot. He answered that they possibly were going to leave in his brother’s pickup and leave his car there overnight, but they didn’t discuss it before the fight started.

Testimony has indicated that Moreno and Chargualaf walked out of the bar and headed east, followed by the Diaz brothers.

Billy Diaz testified that he had trouble pinpointing the location of the fight because he was basing it on where his brother’s pickup was parked. He said there wouldn’t have been any reason for him and his brother to walk past the parked pickup and continue following the off-duty officers.

The preliminary hearing will resume Tuesday with closing arguments from the attorneys. The judge then will determine whether there is enough evidence for the case to proceed to trial.

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