People v. LaPointe, 78-563
| Decision Date | 01 July 1980 |
| Docket Number | No. 78-563,78-563 |
| Citation | 85 Ill.App.3d 215,407 N.E.2d 196,41 Ill.Dec. 4 |
| Parties | , 41 Ill.Dec. 4 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Phillip E. LaPOINTE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Mary Robinson, Deputy State Appellate Defender, Mark Schuster, Asst. State Appellate Defender, Elgin, for defendant-appellant.
J. Michael Fitzsimmons, State's Atty., Robert L. Thompson, Asst. State's Atty., Wheaton, for plaintiff-appellee.
REVISED OPINION UPON DENIAL OF PETITION FOR REHEARING
Defendant, Phillip E. LaPointe, was charged by information with the murder of Peter Moreno, Jr. on March 7, 1978. Initially, defendant pleaded not guilty to the charge. He thereafter withdrew his plea of not guilty and, represented by appointed counsel, entered a plea of guilty to the charge; prior to accepting the guilty plea, the court advised the defendant of all of the possible penalties that could be imposed for murder. Following a sentencing hearing, defendant was sentenced to a term of natural life imprisonment without parole. Defendant appeals only the sentence imposed.
At the outset, it is pointed out that the defendant was sentenced pursuant to Section 1005-8-1 of the Code of Corrections (Ill.Rev.Stat., Supp.1978, ch. 38, par. 1005-8-1(a)(1)) which provides in part as follows:
" * * * if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9-1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural life imprisonment;"
The sentencing hearing in this case involved consideration of the aggravating factors listed in Section 9-1(b) of the Criminal Code (Ill.Rev.Stat., 1977, ch. 38, par. 9-1(b)) and the mitigating and aggravating factors listed in Section 1005-5-3.1 and 3.2 of the Code of Corrections ().
At the sentencing hearing the Code provides that the court shall:
"(1) consider the evidence, if any, received upon the trial;
(2) consider any presentence reports;
(3) consider evidence and information offered by the parties in aggravation and mitigation;
(4) hear arguments as to sentencing alternatives; and
(5) afford the defendant the opportunity to make a statement in his own behalf. " (Ill.Rev.Stat., 1977, ch. 38, par. 1005-4-1)
The sentencing hearing was held on August 31, 1978. Sergeant James A. Altman of the Elmhurst Police Department testified for the State that he was dispatched to the area of Harrison and Chatham Streets in Elmhurst where he discovered a Checker taxicab owned by the Elmhurst Cab Company. Inside the cab was a body of a man, later identified as Peter Moreno, Jr., a cab driver for Elmhurst Cab Company. There was blood on the seat of the cab and the victim had a small wound at the base of the neck. The pockets of the victim's clothing had been turned inside out. Officer Ralph O'Connell testified that an autopsy revealed bullet wounds on the right side of the neck and head area.
David Cichelli testified for the State that on the day of the incident, defendant had showed him a gun and told him that he was going to kill a cab driver. About an hour or two later, defendant returned and told Cichelli that he had shot a cab driver for money. Defendant also commented that he had shot the cab driver because the cab driver knew who he was.
Deputy Sheriffs Leeberg, Marx and Cleveland, all testified that they had seen defendant, while incarcerated in the DuPage County jail, wearing a T-shirt with the words, "Elmhurst Executioner" lettered on it. The shirt was not produced at the hearing; however, Marx testified that such an item could have been flushed down the toilet or burned.
Patricia Duddles testified that she had been engaged to marry the victim and was pregnant with his child. She had been living with the victim and had now lost her home and means of support when he died.
Joseph Ray, age 16, testified for the State that about three weeks prior to the sentencing hearing, defendant had telephoned him and asked him to smuggle some "hash" into the jail; the witness said he refused. The witness stated that he had participated with defendant in the burglary that led to the latter's prior conviction; he also said defendant had tried to persuade him to assist him in a robbery of a drug store but nothing ever came of this request.
Dolores and William Malo, defendant's mother and stepfather, testified for the defendant that he had never been a violent or aggressive person, but that they had been unable to control him in the last three years due to his use of drugs. Leroy LaPointe, defendant's father, testified that defendant had visited him in New Jersey for four weeks the previous fall. He found defendant to be involved with drugs, but not aggressive or armed. Reverend Erling Jacobson testified that defendant's mother had asked him to help her son. The witness found the defendant to be suffering from rejection and depression and attempted to counsel him. The witness felt that the defendant was a "dangerous character * * * almost like a split personality" and that he should be locked up "because he is dangerous to himself and to society." On his own behalf, the defendant stated as follows:
The trial court set the imposition of sentence for September 18, 1978.
On September 18th the trial judge stated that he had gone over a transcript of the evidence adduced on August 31, 1978 and had also considered the credibility and the demeanor of the witnesses. He found that the shooting was premeditated and deliberate on the part of the defendant and that the victim's pockets had been emptied; that the victim had been shot twice in the back of the neck. Next he determined that defendant's conduct indicated a lack of remorse. Then he pointed out that the witness, Ray, testified that defendant had requested him to assist as a lookout while defendant robbed a drug store and further that while defendant was in jail awaiting trial in this case he had called Ray by phone and requested that "hash" be smuggled to him. The court then observed that defendant's mother had stated he had been on drugs and that Reverend Jacobson, a pastor who had tried to assist the defendant at his mother's request, stated that defendant was "dangerous to himself and society". The record contains a presentence report prepared by the DuPage County Probation Department, however, the judge made no reference to this report in announcing his findings.
The presentence report revealed that defendant's criminal record consisted of a burglary charge filed on March 15, 1977, to which defendant pleaded guilty and was placed on probation on September 30, 1977 for a term of three years; a charge of attempted burglary was also filed against the defendant on March 29, 1977 but this was nolle prossed. It further appears that defendant's natural parents were divorced when he was three years old and that his mother remarried twice thereafter; that defendant completed only two years of high school and worked at different jobs for short periods of time; his mother stated that he worked until "he had enough money to buy drugs". It further appears that defendant lived for the last 9 years with his mother and stepfather and that defendant and his stepfather had many disagreements that on occasion led to physical abuse of the defendant. Defendant was examined by a psychiatrist approximately one month after the crime involved herein and at this time the psychiatrist felt that defendant's history suggested an adolescent reaction complicated by severe hallucinogenic drug abuse; he concluded that additional psychological testing was required to further evaluate defendant's mental status. At the time of his arrest the day after the murder, a quantity of drugs was found in defendant's possession.
After reviewing the evidence, the trial judge then considered, one by one, each factor in mitigation as set forth in Section 1005-5-3.1(a) and concluded that none of them applied.
Next, he covered the aggravating factors enumerated in Section 9-1(b) stating that the defendant was 18 years or more of age and that he had been found guilty of murder; he then stated that the killing was intentional and in the course of committing a felony; he further found defendant to have a "significant history of prior criminal activity" and that the murder was not committed while defendant was under the influence of mental or emotional disturbance. The trial court then stated as follows:
"So, the Court, in taking into consideration the heinous nature of this crime, its brutality, its cold, calculating, cold-blooded act which is indicative of the wanton cruelty, there was indication it was premeditated and postmeditated, the Court took into consideration the presentence investigation which more or less correlated everything that was in the transcript and the testimony on the hearing in aggravation and mitigation, and the Court has taken into consideration the arguments of counsel at the hearing in aggravation and mitigation, the fact that the defendant was over 18 years of age, and therefore, it shall be the judgment of this court that the defendant be remanded to the custody of the Sheriff of DuPage County, and thence to the custody of...
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