People v. Horta

• Citation: 67 N.E.3d 994,2016 IL App (2d) 140714
• Decision Date: 05 December 2016
• Docket Number: No. 2–14–0714.,2–14–0714.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Jose J. HORTA, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (2d) 140714

67 N.E.3d 994

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Jose J. HORTA, Defendant–Appellant.

No. 2–14–0714.

Appellate Court of Illinois, Second District.

Dec. 5, 2016.

Thomas A. Lilien, Patricia Mysza, and Jennifer Bontrager, of State Appellate Defender's Office, of Elgin, for appellant.

Michael G. Nerheim, State's Attorney, of Waukegan (Lawrence M. Bauer and Aline Dias, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice ZENOFF delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant, Jose J. Horta, was convicted, under an accountability theory, of first-degree murder (720 ILCS 5/9–1(a)(2) (West 2010)). The trial court sentenced him to 59 years' imprisonment, which included a mandatory 15–year add-on because defendant was armed with a firearm during the commission of the offense (see 730 ILCS 5/5–8–1(a)(1)(d)(i) (West 2010)). Defendant appeals, contending that (1) his sentence is excessive given (a) the various mitigating factors and (b) that the three other people who were convicted of the murder all received shorter sentences; and (2) the mandatory 15–year add-on, as applied, violates the eighth amendment (U.S. Const. amend. VIII ) and the Illinois Constitution's proportionate-penalties clause (Ill. Const. 1970, art. I, § 11 ). We affirm.

¶ 2 At trial, Richard Del Boccio testified that, on the morning of July 6, 2011, while he was at the Penny Road Pond forest preserve, he saw the body of a man, later identified as David Campbell, partly submerged in the water. Del Boccio called the police. Detective Sajid Haidari of the Cook County sheriff's police testified that he participated in responding to the call. Near the shoreline was Campbell's nude body, with lacerations to the top of the forehead and behind the left ear; abrasions to the face

; several marks on the thighs and genitals; more marks on the chest; and a mark on the right wrist. Lying a few feet away was a plastic zip tie. The body was removed from the water, and photographs were taken. At trial, Haidari testified that they showed marks on Campbell's left wrist and right hand; abrasions to his back in the left-shoulder area; and marks that went all the way around his neck. On July 7, 2011, Haidari attended as Dr. Ariel Goldschmidt performed Campbell's autopsy. At trial, Haidari identified photographs from the autopsy and testified that they showed Campbell's body, in substantially the same condition as it had been at the pond. At some point, Haidari and another retrieved Campbell's car in Indiana. In June 2012, the sheriff's police turned the investigation over to the Waukegan police.

¶ 3 Goldschmidt testified as follows. On July 7, 2011, he performed the autopsy on Campbell. He observed petechial hemorrhages

in the right eye, i.e., the rupturing of small blood vessels on the surface of the eye, and burst capillaries. Both types of injuries had been caused by oxygen loss. Multiple abrasions ran the circumference of Campbell's neck. One possible cause of such injuries is a ligature, such as a rope or a zip tie, applied with pressure around the neck.

¶ 4 The court admitted photographs of Campbell's injuries. Goldschmidt testified that they showed the abrasions to the neck

; an abrasion just medial to the left shoulder; and vomit underneath the nose. Goldschmidt testified further that, during the autopsy, he observed a laceration to Campbell's left earlobe and several incised wounds and abrasions around the right ear, caused by a sharp object of some type. Inside Campbell's neck there was bleeding to the soft tissue in several areas, an expected result of blunt force or pressure to the outside of the neck. Campbell's brain was swollen, meaning that death had been "slow, slower than immediate," as "there was time for the lack of oxygen to damage the brain and cause it to swell."

¶ 5 Goldschmidt opined to a reasonable degree of medical certainty that Campbell's death was caused by strangulation. He based his opinion on the findings indicating pressure around the neck and oxygen deprivation. Goldschmidt stated that a person would die within minutes from strangulation but would probably lose consciousness within seconds. The findings were also consistent with asphyxiation

, a general term for oxygen deprivation. Either strangulation or asphyxiation would produce the petechial hemorrhaging and brain swelling, but asphyxiation would take somewhat longer to cause death; the victim would pass out "[w]ithin minutes." Asphyxiation could be caused by placing a plastic bag over the person's head. Goldschmidt could not determine how long it took for Campbell to die.

¶ 6 Goldschmidt testified that an X-ray did not show the cause of Campbell's death but ruled out shooting. The laceration to the top of the head did not cause death, either, although the force that produced it also caused bleeding within the scalp. There were scrapes and bruises to Campbell's external chest; an abrasion to his right wrist, left hand, and left wrist; and injuries to the left wrist, consistent with pressure being applied by an object wrapped around it. Goldschmidt observed a pattern of recent thermal injuries to Campbell's legs and the tip of his penis; these injuries were consistent with the use of a blowtorch or lighter. Goldschmidt could not determine whether these injuries were inflicted before or after Campbell was dead.

¶ 7 Jason Gutke, a Waukegan police detective, testified as follows. On July 2, 2011, while investigating a report of a kidnapping, he interviewed defendant, who told Gutke the following. He resided at 1034 North Butrick in Waukegan, as did Roberto Guzman, Michael Castellanos, and Nadia Palacios. At about 8:30 that morning, while he was away from home, he received a call from Castellanos. Castellanos said that he, Guzman, and Palacios had been kidnapped and driven to an abandoned house in North Chicago, where they were held down at gunpoint and Palacios was penetrated with a butter knife. He and Palacios had gotten free and were on Jackson, but the kidnappers still had Guzman. Defendant tried calling Guzman but could not reach him. He told Castellanos and Palacios that he would try to get a ride to meet them. Defendant got a ride. He saw Castellanos and Palacios near Jackson. She was shoeless. Both had red marks on their wrists from being tied up. Gutke asked defendant who would do such a thing to his three housemates; defendant said that he had no information on that.

¶ 8 Defendant also wrote a statement that was consistent with Gutke's account of the interview. It added that Castellanos told defendant that the kidnappers, black men, broke into Guzman's van and abducted the three victims at gunpoint. Also, Palacios told defendant that she knew where the abandoned house was, as the kidnappers had disclosed it while driving her there.

¶ 9 Alejos Villalobos, a Waukegan police detective, testified as follows. On June 20, 2012, at the police station, he and Detective Ulloa interviewed defendant. At that time, the only other suspect in the Campbell case who had made a statement to the police was Palacios. Villalobos asked defendant whether he knew why he was there; defendant said that it was because of "the thing with Nadia, Robert [sic ] and Big Stank [Eric Castillo]." He described Castellanos' account of the kidnapping and his subsequent contact with Castellanos and Palacios. Defendant also said that his friends reported that they had been robbed; that some black males came to the abandoned house and took Palacios; and that one of them put a knife into her vagina.

¶ 10 Villalobos testified that defendant continued as follows. At some point after his friends had all been freed, Guzman called him and said that he thought he knew who one of the robbers was. Defendant asked Guzman what he would do about it, and Guzman said that "he was going to rob him or do whatever" and asked defendant whether he wanted to be part of it. Defendant said at first that he did not know, "and then they [sic ] asked him this is for Nadia, at which time he said that he would take part in it." Villalobos' testimony continued:

"Q. Did he indicate to you anything else about what happened after Robert called him and told him we think we got the guy that did the robbery?

A. Yes. He stated that Robert gave him a .22 and that he pointed the gun at the guy and told the guy to get on his knees.

Q. Did he indicate to you what the guy said when he told him to get on his knees?

A. He said the guy said all right. The guy then got on his knees. [Defendant] then went on to explain that Big Stank and a Mexican guy then grabbed the guy and started beating on him while [defendant] was holding the gun towards him. He actually showed a motion where he put his hands up as if he is holding a gun like he is pointing it at the guy (indicating).

Q. For the record, [Villalobos] just put [his] hands out kind of in the form of a gun and [his] arms were parallel to the ground. Is that the motion he was making?

A. That's correct.

Q. What else did he say?

A. He goes on to describe how while they were beating him what they did to him as far as they put bags over his head. Specifically we asked him how many bags. He said five or six bags. We asked him what the guy was saying. He said the guy was saying that he didn't know what they were talking about and that he didn't have anything to do with the kidnapping."

¶ 11 Villalobos testified that defendant said that the foregoing happened at an auto body shop. Asked who had been there at the time, defendant named himself, Palacios, "Big Stank [Castillo], the kid [Alex Rivera] and the Mexican guy." Defendant said that Guzman had not been there but had called him at one point to find out "what was going on and how things were going." Defendant added that, while he had the gun pointed at Campbell, he told him, "so you like to put knives in girls' pussies. How about I put a bullet in your head?"...