People v. Hartzol
| Decision Date | 27 November 1991 |
| Docket Number | No. 1-88-0947,1-88-0947 |
| Citation | 222 Ill.App.3d 631,584 N.E.2d 291,165 Ill.Dec. 112 |
| Parties | , 165 Ill.Dec. 112 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony HARTZOL, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Jack O'Malley, State's Atty., Chicago (Renee Goldfarb, Kenneth T. McCurry, Sharon Jefferson, of counsel), for plaintiff-appellee.
Randolph N. Stone, Public Defender of Cook County, Chicago (Thomas N. Swital, of counsel), for defendant-appellant.
A jury found defendant, Anthony Hartzol, guilty of murder, armed robbery, aggravated criminal sexual assault and home invasion. The court sentenced defendant to a term of natural life imprisonment for murder; a consecutive, extended term of 60 years for aggravated criminal sexual assault; a concurrent term of 30 years for home invasion; and a concurrent term of 30 years for armed robbery.
On appeal, defendant contends that the trial court erred in denying his motion to suppress lineup identification evidence because the photo array and lineup were unnecessarily suggestive; and that the court erred in refusing to give the jury an instruction on accountability for murder. In regard to sentencing, defendant contends that he was deprived of his due process rights when the court relied on hearsay reports concerning defendant's misconduct while he was incarcerated prior to trial; that the court improperly considered certain aggravating factors because it erroneously believed defendant was eligible for the death penalty; that it was improper to impose consecutive sentences for murder and aggravated criminal sexual assault because they were part of a single course of conduct; that a natural life imprisonment term was improper because defendant's conduct was not exceptionally brutal or heinous; that the Illinois penalty statutes for murder violate due process and equal protection by permitting either natural life or extended terms for exceptionally brutal and heinous crimes; that the natural life sentence was grossly disparate to the 60- year sentence received by a co-defendant; and that a natural life sentence without possibility of parole violates the 8th and 14th Amendments.
On September 24, 1984, at about 2:00 a.m., defendant and an accomplice, Samuel Marzette (who was tried separately) broke into the home of 34-year old Lavelle Sherman, 36-year old Linda T., and their three children, 13-year old Daniel, 5-year old Diedra, and 6-month old Derrick, and demanded money and drugs. During the incident, which lasted from 10 to 20 minutes, Lavelle was shot and killed.
Prior to trial, defendant filed a motion to suppress the identifications made by photo array and by physical lineup.
Detective Wilson F. Watson of the Harvey police department testified that defendant was arrested for the crimes in question on September 26, 1984. At 9:45 a.m., a photo array which included defendant, Marzette and five other men was shown to 13-year old Daniel, who identified defendant and Marzette. At 10:45 p.m., Daniel and his mother, Linda, separately viewed a physical lineup. Both of them identified defendant as the man who shot Lavelle. Defendant was the only person included in both the photo array and the lineup, and was the only person wearing braids.
The court granted defendant's motion to bar reference to the photo array because the police department was unable to produce the photos at the time of the hearing. The court denied defendant's motion to bar reference to the identifications made at the physical lineup.
At trial, Linda testified that on Sunday, September 24, 1984, she lived in Harvey, Illinois with Lavelle Sherman and their three children. She had lived with Lavelle for about 14 years. At the time, they lived in a three room house, including a kitchen which led to a "middle bedroom," which led to a "back bedroom." The rooms did not have doors, and there was a straight line of sight from the back bedroom to the kitchen. A bare light bulb was always on in the kitchen and in the middle bedroom.
On September 24, 1984, Linda and the children arrived home from her mother's at about 1:30 a.m. Lavelle was asleep in bed in the back bedroom. At 2:00 a.m., Linda and the three children had just gone to bed, also in the back bedroom, when Daniel woke up Lavelle and said that he heard someone at the back door. Lavelle and Daniel got up and walked toward the kitchen. The "door burst open and two men fell into the kitchen." The men were later identified as defendant and Marzette. Lavelle quickly shoved Daniel and Diedra under a pile of clothes in the back bedroom. Linda was sitting on the bed holding the baby.
Marzette held a sawed-off shotgun. The men "began to beat [Lavelle] and ask him for money" and drugs. Linda saw defendant hit and push Lavelle. It "looked like [Marzette] hit [Lavelle] with the end of the gun, the butt of the gun." Lavelle said they had no money. "Then they pushed him down to the floor and made him lay down face down on the floor in the middle bedroom." They continued to beat Lavelle and demand money and drugs. At one point, defendant took Lavelle's wallet out of his back pocket while Lavelle was face down on the floor and Marzette was holding the shotgun.
Defendant then went into the back bedroom, grabbed Linda, and pulled her into the middle bedroom. He pushed her down on one of the twin beds in the middle bedroom. She held the baby under her arm. Marzette was standing in the corner of the middle bedroom "with the shotgun over" Lavelle. Defendant stood between Linda's legs, behind her, with his knee on Linda's back. He was choking her, pushing her face into the mattress. Linda testified, She continued: her vagina. He kept demanding money or drugs. Linda said they had none. He slapped Linda.
"After that he grabbed Derrick by his feet and pulled him out from under me." Defendant "held Derrick up by his heels toward the guy standing in the corner and said, 'Man, shoot this m___f___ baby.' " Linda, leaning on her side and looking up from the bed, begged defendant not to hurt the baby. Linda testified:
"A. Then he threw the baby across the room toward the other bed on the other side against the wall. He threw him against the wall.
Q. And did you see him throw Derrick?
A. Yes, I did.
Q. And what happened to Derrick?
A. Derrick hit the wall and fell into the bed.
* * * * * *
Q. What happened after that?
A. Then he forced me back down on the bed and put his knee like in my back and his right hand on my neck * * * and held me down."
After that, Linda felt defendant "lean away from me [and] I heard footsteps and movement." Then she heard a shot. There was "a couple of seconds" between the time she felt defendant's knee come off her back and the time she heard the shot.
"Q. What did you see?
A. I saw him standing there with his shotgun in his hand. * * * Smoke was coming out of it.
Q. Did you see the other individual [Marzette] anywhere in the room?
A. No I didn't.
Q. How long was it between the time you heard the shot and you saw [defendant] holding the gun?
A. Couple of seconds."
Defendant then ran out of the house. Linda saw Daniel "standing in the doorway of the back bedroom looking at [Lavelle]." Two days later, Linda identified defendant in a lineup.
Linda testified on cross-examination: The entire incident lasted 15 to 20 minutes.
Linda remembered later talking to Detective Watson. She denied telling Watson that the "taller man" assaulted her or the baby. She did tell Watson that the "taller subject" was 6'1"' to 6'2"' tall, thin to medium build, early 20's, medium complexion, wearing khaki pants. She described the "shorter man" as 5'7"'. He wore a black and white checked shirt, jacket, dark pants. She told Watson the shorter man had dark bumps on his face; was a few inches taller than Lavelle, but a little heavier; he had braided hair. She denied giving any different description to Watson. The photograph of the lineup showed defendant with his hair braided differently.
On cross-examination, apparently in an attempt to impeach Linda's credibility, defense counsel inquired about Linda's drug use and sale of drugs, and prior convictions.
Seventeen year old Daniel T., Linda's son, testified that on September 24, 1984, he was 13 years old. When he heard a loud noise at the door, he woke up Lavelle, his father. He followed his father to the middle bedroom, when "[t]wo men come stumbling in the door." Defendant entered first. Marzette held a shotgun. Lavelle
Daniel heard Lavelle arguing in the other room with the two men. The men demanded money and "shit" and Lavelle
Defendant then came into the back bedroom. He "[felt] around, looking for a light switch or something." Defendant then grabbed Linda and "dragged her out of the room." Daniel was "laying besides the bed, * * * peeking around the corner," watching.
Daniel moved "up closer to the door," telling Diedra to remain hidden. Daniel remained crouched down, looking into the...
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