APPEAL from the Circuit Court of Du Page County; the Hon.
EDWIN DOUGLAS, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
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 5-8-1 of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., 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 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 sections 5-5-3.1 and 5-5-3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, pars. 1005-5-3.1, 1005-5-3.2).
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. Iside 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 Du Page 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 ...