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People v. Horta

Court of Appeals of Illinois, Second District

December 5, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JOSE J. HORTA, Defendant-Appellant.

         Appeal from the Circuit Court of Lake County, No. 12-CF-1763; the Hon. Mark L. Levitt, Judge, presiding.

         Affirmed.

          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.

          ZENOFF JUSTICE delivered the judgment of the court, with opinion. Justices Burke and Hudson concurred in the judgment and opinion.

          OPINION

          ZENOFF JUSTICE.

         ¶ 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?" 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 wearing."

         ¶ 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 ...


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