from the Circuit Court of Lake County, No. 12-CF-1763; the
Hon. Mark L. Levitt, Judge, presiding.
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
JUSTICE delivered the judgment of the court, with opinion.
Justices Burke and Hudson concurred in the judgment and
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
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
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
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
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
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
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?" Campbell responded
that he did not know what defendant was talking about. During
this time, Palacios was laughing at Campbell and accusing him
of the sexual assault, "based on the shoes that he was
12 Villalobos testified further that defendant related that,
when Campbell entered the room, Castillo grabbed him and held
him while the "Mexican guy" punched him. Asked
about other injuries that were inflicted on Campbell,
defendant disclosed the following. At some point after
accusing Campbell, Palacios left the room, returned with a
blowtorch, and "torched his ass and his dick."
Campbell's hands were zip-tied together; his feet were
taped; and the "Mexican guy" hit him over the head
with a hammer as Castillo was holding onto him. The attackers
put five or six plastic bags over Campbell's head. The
detectives asked whether Campbell was breathing when the bags
were put over his head, and defendant indicated that, at that
point, "he could see the bag going in and out."
Defendant told the detectives that, as the attack went on,
"he was standing there with the gun and was thinking to
himself what the fuck am I doing?"
13 Villalobos testified that the detectives asked defendant
where he had obtained the gun. He said that Palacios drove
him to the shop, arriving about 15 minutes before Campbell
appeared. Guzman was there. He gave defendant the gun, told
him to point it at Campbell to scare him, and left before
Campbell arrived. Defendant added that Campbell went to the
shop because he had been led to believe that Guzman would
sell him drugs there; actually, Guzman had no drugs and was
setting Campbell up for the attack.
14 Villalobos testified that the detectives asked defendant
about his role in moving the body. At first, defendant said
that he rode out of the shop with the "Mexican guy"
and the body, but that the "Mexican guy" dropped
him off early, disposed of the body, and came back an hour
later and drove him to a hotel in Kenosha. After the
detectives confronted him with a tollbooth video, he said
that he and the "Mexican guy" left the shop
together in the latter's car, with defendant driving;
that they stopped near a pond and unloaded Campbell's
body; that the "Mexican guy" dragged the body away
and told defendant to come back in 20 minutes; and that, when
defendant came back, he picked up the "Mexican guy"
on the road. Defendant added that, on the ride back from the
pond, "he was thinking he couldn't believe what he
had just done."
15 Villalobos testified that defendant recounted that, at the
Kenosha hotel, Guzman passed out $18, 000 that had been taken
from Campbell. Defendant received $1000. After the interview
ended, defendant viewed photographic lineups and identified
Castillo, Palacios, Guzman, and Rivera (who had accompanied
Campbell to the shop). A DVD of the interview was published
to the jury.
16 Castellanos then testified as follows. On July 2, 2011, he
lived at 1034 North Butrick with Guzman, Palacios, and
defendant. That evening, he was at home with Guzman and
Palacios. A storm knocked out the power, so they sat in
Guzman's vehicle outside to watch a movie. A man opened
the door, put a gun to Guzman's head, and pulled him out.
Three other men pulled out Castellanos and Palacios. The
attackers put zip ties on their victims' hands and bags
over the victims' heads, took them inside the house, and
got Castellanos' keys from him. One attacker drove
Castellanos' vehicle to a house in North Chicago. They
were there for 20 or 30 minutes. The attacker then let
Castellanos and Palacios leave. Castellanos and Palacios
removed the bags and zip ties, and Castellanos called
defendant, who eventually picked them up. They told him what
had just happened.
17 Castellanos testified further that, on July 6, 2011, just
after midnight, he was having a get-together on his porch
when defendant arrived and approached him. He told
Castellanos to smell his hands and added, " 'You
want to know what a dead body smells like?' "
Castellanos smelled bleach on defendant's hands and told
him to go inside and shower. Defendant showered, returned,
and told Castellanos about the attack on Campbell.
Specifically, he related that "[h]e held a gun, that he
put the tape around David Campbell's neck and that he hit
[Campbell] with a gun." Defendant said that he put tape
around Campbell's neck "[w]ith a bag, like a bag
around his neck, then taped it around." He added that,
after Campbell died, he put bleach on the body. He said that
he was compensated $1000 for his role in the killing.
18 Alex Rivera testified as follows. Campbell had been his
friend. At the time of the attack, he had also known Guzman
and defendant for two or three years and was acquainted with
Castillo and Castellanos. On July 5, 2011, Campbell called
Rivera and picked him up "[f]or a drug deal, " of
which Campbell had recently told him. They parked in front of
Campbell's girlfriend's house. Guzman called and
asked Rivera to bring Campbell to the auto body shop so that
Guzman could sell him drugs. Campbell, accompanied by Rivera,
then drove there.
19 Rivera testified that, when he and Campbell arrived at the
shop, Palacios greeted them and escorted them inside.
Palacios said that the deal would take place in the office,
so they all went there. Rivera entered the office; a man
standing behind a desk shook his hand, bear-hugged him,
emptied his pockets, and set him on a couch in the corner.
Campbell then entered. Castillo came from behind the door,
bear-hugged Campbell, put him down onto the floor, and held
him down. Castillo asked Campbell who had sent him; Campbell
responded that nobody had.
20 Rivera testified that next Palacios and defendant entered
the office together. Defendant was holding a black object by
his side. Castillo then hit Campbell with a hammer in the
head and chest. Next, he placed a grocery bag over
Campbell's head. During this time, defendant said nothing
to Campbell. Palacios repeatedly told Campbell " 'I
know it was you, ' " but Campbell denied the
accusation. Shortly afterward, Palacios entered with a
blowtorch, pulled down Campbell's pants, and "blow
torched his penis." The man who had bear-hugged Rivera
put more bags over Campbell's head and zip-tied them
around his neck.
21 Rivera testified that Palacios told him to go with her.
They entered Campbell's vehicle and Palacios drove away.
Stopping in Indiana, she pulled out a bottle of bleach, wet
down some surfaces, and told Rivera to help her wipe them
down, which he did. Later, Guzman, who had not been at the
shop, and Castillo picked them up and drove to a hotel in
Kenosha. Defendant showed up a little later. Guzman took a
stack of money and distributed some to Castillo, Palacios,
and defendant. Rivera stayed overnight and was dropped off at
home the next morning.
22 Rivera testified that he never saw defendant point the
black object in his hand. Defendant did not go toward
Campbell while the latter was lying on the floor and did not
say anything while Rivera was there. Defendant did not assist
in either putting the plastic bags over Campbell's head
or using the blowtorch on him.
23 The jury found defendant guilty of first-degree murder
under an accountability theory. The jury also found that the
murder was accompanied by exceptionally brutal or heinous
behavior indicative of wanton cruelty (see 730 ILCS
5/5-5-3.2(b)(2) (West 2010)) and ...