Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Rock Island
County, the Hon. David DeDoncker, Judge, presiding.
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
The defendant, Victor Saldivar, was charged by criminal information in the circuit court of Rock Island County with the murder of Terrence Hunt. (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(2).) Following a bench trial on stipulated facts, the defendant was found guilty of voluntary manslaughter. (Ill. Rev. Stat. 1983, ch. 38, pars. 9-2(a)(1), (b).) The circuit court sentenced the defendant to a seven-year term of imprisonment with a mandatory supervised release term of two years (Ill. Rev. Stat. 1983, ch. 38, pars. 9-2(c), 1005-8-1(a)(4)). The appellate court affirmed the defendant's conviction and sentence in a Rule 23 order (87 Ill.2d R. 23; 130 Ill. App.3d 1163). We allowed the defendant's petition for leave to appeal (94 Ill.2d R. 315(a)).
The defendant raises two issues on appeal in this court. The first issue is whether the circuit court erred in considering as a statutory aggravating sentencing factor that the defendant's conduct caused serious harm to the victim. The second issue, which is not dependent on the disposition of the first, is whether, in light of the substantial mitigating evidence presented, the circuit court abused its discretion in sentencing the defendant to a seven-year term of imprisonment.
The record discloses that the prosecution and defense counsel stipulated to what certain witnesses would testify if they were present in court. It was stipulated that if a deputy sheriff from the Rock Island County sheriff's department were called, he would testify that the body of the victim, Terrence Hunt, was found in a trailer home in Woodland Trailer Park, Rock Island County, on October 17, 1983; that if the pathologist from Rock Island County were present, he would testify that the victim was fatally stabbed twice in the chest; and that if the chief investigator from the Rock Island County sheriff's department were called, he would testify that an investigation followed which led to the arrest of the defendant. It was further stipulated that the defendant gave an oral statement to law officers from the Rock Island County sheriff's department admitting his involvement in the homicide. According to the prosecutor, the State would also have corroborated the defendant's confession with the testimony of acquaintances of the defendant. They would testify to conversations with the defendant after the crime wherein the defendant stated that he accompanied the victim to the victim's trailer home; that the victim had represented to him that a party was taking place at the trailer; that no one was in the trailer when they arrived; that the victim made a homosexual advance; that he refused; that a struggle ensued; and that he stabbed the victim with a kitchen knife. It was also stipulated that homosexual paraphernalia was found in the victim's trailer.
After hearing the stipulated evidence and affording the defendant the opportunity to make a statement in his own behalf, the circuit court found the defendant guilty of the lesser included offense of voluntary manslaughter (Ill. Rev. Stat. 1983, ch. 38, pars. 9-2(a)(1), (b)). Following the defendant's conviction, a sentencing hearing was held on May 11, 1984. A written presentence report of investigation (Ill. Rev. Stat. 1983, ch. 38, pars. 1005-3-1, 1005-3-2) was submitted at the hearing and considered by the trial judge. A handwritten statement by the defendant directed to the trial judge was also appended to the presentence report. At the sentencing hearing, evidence in mitigation of the offense was presented and considered by the court. No evidence was offered in aggravation.
At the time of the presentence report, the defendant was 35 years of age, married, and the father of a three-year-old son and a six-year-old daughter. The report indicated that the defendant enlisted in the United States Marines in January 1967, and was discharged honorably in January 1970. He subsequently reenlisted for a second term and was discharged under conditions other than honorable in 1975. During his term in the Marines, the defendant spent almost four years in Vietnam and received a foreign-combat-action ribbon. The defendant also obtained a high school equivalency certificate (GED) while in the Marines.
Following his discharge from military service, the defendant was employed by Mercy Hospital in Davenport, Iowa, by a Long John Silvers restaurant in Bettendorf, Iowa, by Turnstyle Discount Stores in Omaha, Nebraska, and by Taco Bell Restaurants also in Omaha. For almost five years prior to the sentencing hearing, the defendant was employed by the John Deere Company as a material coordinator in the production line. The defendant had no prior history of delinquency or criminal activity. The report stated that the defendant had been under psychiatric treatment for post-traumatic stress syndrome resulting from his Vietnam experience. In addition, the defendant suffered from diabetes and had been hospitalized on one occasion for acute alcoholism. The report also contained information pertaining to the defendant's religious preference, economic status, and family situation and background. The report concluded with information about special resources within the defendant's community available to assist the defendant's rehabilitation.
In the letter presented to the trial judge, the defendant stated that he did not desire a sentence of imprisonment. He indicated his desire to care for the future needs of his children, especially noting his daughter's need for his emotional and physical support. He stated that he wished to continue his employment with John Deere, which would be terminated if he was sent to prison. He ended this letter with a plea to be sentenced to a period of probation.
The defendant called three witnesses at the sentencing hearing. Marie Saldivar, his mother, testified that her husband was a diabetic, that he had lost much of his sight and his hearing, and that he had a kidney removed due to cancer. She testified that the defendant provided her and her husband with both monetary and moral support and that the defendant was a very good father. She stated her concern for her son if he was imprisoned and her concern for her grandchildren. She also stated that the defendant was a very religious man who, in the ninth grade, had wanted to become a Marist priest.
The defendant's wife, Carol Ann Saldivar, testified that the defendant was deeply devoted to his children. She stated that during her separation from the defendant, the defendant's daughter had to undergo psychiatric counseling. She further testified that the defendant was the family's sole means of financial support and, since his incarceration, the family was seeking Aid to Dependent Children (AFDC benefits). She also claimed that if the defendant was placed on probation, the family would be able once again to function as a household unit. She admitted on cross-examination, however, that the defendant was involved with a veterans group and thus spent a great deal of time away from the home.
Lieutenant Mike Grchan of the Rock Island County sheriff's department was the final witness called by the defendant. He testified that explicit pornographic magazines and sexual paraphernalia were found in the victim's trailer. On cross-examination, however, Grchan testified that the items were found in a storage room in the trailer. Grchan also testified on cross-examination that the inside of the trailer did not appear as if there had been a physical struggle.
Finally, the defendant testified in his own behalf. He testified about his relationship with his family, his diabetes which required daily insulin injections, and his occasional abuse of alcohol. The defendant further testified about his record in the Marines, offering explanations for his less than honorable discharge.
The trial judge, in determining the sentence to be imposed, considered what he believed to be the relevant statutory factors. In mitigation, the trial judge found that the defendant acted under a strong provocation; that the defendant's criminal conduct was the result of circumstances unlikely to recur; that the character and attitudes of the defendant indicated that he was unlikely to commit another crime; and that the defendant was particularly likely to comply with the terms of a period of probation. (Ill. Rev. Stat. 1983, ch. 38, pars. 1005-5-3.1(a)(3), (a)(8), (a)(9), (a)(10).) The trial judge, however, found as the primary statutory factor in aggravation "the terrible harm that was caused to the victim." (Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-3.2(a)(1).) The trial judge also mentioned that the defendant's conduct caused death and that a human life was taken. The trial judge further emphasized that the defendant's ...