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11/01/94 PEOPLE STATE ILLINOIS v. CELERINO GALICIA

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT


November 1, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CELERINO GALICIA, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Lake County. No. 92-CF-679. Honorable Barbara Gilleran-Johnson, Judge, Presiding.

PECCARELLI, Woodward, Quetsch

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI, delivered the opinion of the court:

The defendant, Celerino Galicia, was convicted of first degree murder in the circuit court of Lake County. He raises no issue as to the trial and verdict of guilty of first degree murder but asserts the trial court, at the sentencing hearing, considered (1) unreliable evidence in aggravation, and (2) death of the victim, a factor inherent in first degree murder, in sentencing the defendant to a 50-year term of imprisonment.

The testimony adduced at trial, the testimony adduced at the sentencing hearing, and the presentence report disclosed the following facts related to the issues presented. We state only those facts necessary to a determination of those issues.

The defendant and victim had a continuing conjugal relationship and lived together in Mexico and Illinois. Each had a prior conjugal relationship with other persons in Mexico. A week before the occurrence that gave rise to the instant case the victim separated from the defendant. There was some testimony of an altercation between the defendant and the victim a week preceding the death of the victim which resulted in a criminal misdemeanor complaint. The defendant testified that on the date of the occurrence he consumed alcoholic beverages that were self-induced and he could not remember much of what happened. Witnesses testified that the victim was in the company of several women friends at a friend's apartment when the defendant appeared inside the apartment and engaged the victim in conversation. The defendant and the victim exited the apartment to a stairwell. The victim sat on the landing in the stairwell. One of the witnesses sat next to the victim. The defendant was standing, facing them. The defendant and the victim were talking to each other. The defendant became angry, lifted his sweater, and started punching the victim. The witness sitting next to the victim observed blood on the victim and ran to the apartment for help.

A knife was recovered outside the apartment building. The parties stipulated that a serological analysis revealed the presence of human blood on the knife. The bloodstains were consistent with the blood group profile of the defendant and the victim. The defendant suffered a lacerated left hand that night. He left the scene subsequent to the occurrence and was treated at a hospital. The victim had 31 stab wounds on her body distributed predominantly to her chest and abdomen, her left arm and right shoulder, and 12 incised wounds on her hand.

At the time of trial the defendant was 24 years old. He was born in Mexico, completed his secondary education and attended 3 1/2 years of technical schooling prior to entering the United States. He attended English classes for six months at Mundelein High School. He does not have resident alien status.

The issues presented for our review are whether the trial court erred (1) by considering unreliable evidence in aggravation and (2) by considering death of the victim, a factor inherent in first degree murder, in sentencing the defendant.

The first issue to confront this court is whether the defendant preserved the issues raised. The general rule is that an objection related to a defendant's sentence first must be presented to the trial court before review may be sought. Sentencing issues are waived on appeal unless challenged in the trial court either by objection at the sentencing hearing or by way of a motion to reconsider the sentence. ( People v. Robinson (1993), 250 Ill. App. 3d 824, 832, 189 Ill. Dec. 310, 619 N.E.2d 1359.) In the instant case, neither a specific objection to the sentence was made in the trial court, nor was an objection to the sentence raised in a post-trial motion. Defendant argues that the motion to strike the testimony of Martha Villanueva as inherently untrustworthy and inherently unreliable was sufficient to constitute an objection to the sentence.

Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)) provides a limited exception to this general rule. The rule provides that plain errors affecting substantial rights may be noticed on appeal, though not objected to at trial or in a post-trial motion. The plain error rule permits a reviewing court to consider a trial error not properly preserved for review in two circumstances: first, where the evidence is closely balanced, and, second, the error is so fundamental that the defendant was denied a fair trial. ( People v. Herrett (1990), 137 Ill. 2d 195, 209-10, 148 Ill. Dec. 695, 561 N.E.2d 1.) We consider the issue even in the absence of proper preservation because an error in sentencing can affect defendant's fundamental right to liberty and, thus, amount to plain error. ( People v. Martin (1988), 119 Ill. 2d 453, 458, 116 Ill. Dec. 669, 519 N.E.2d 884; People v. Bennett (1992), 222 Ill. App. 3d 188, 205, 164 Ill. Dec. 426, 582 N.E.2d 1370.) In the instant case, we believe the evidence in aggravation and mitigation, and specifically alluded to by the trial Judge, is closely balanced and the error in sentencing affects the defendant's fundamental right to liberty.

The defendant argues that the testimony of Martha Villanueva at the sentencing hearing was incredible and unreliable. He claims her testimony at trial was inconsistent with forensic evidence concerning a trail of blood from the apartment doorway, over an area of the parking lot and then back to the apartment doorway, and another trail of blood from the apartment doorway to an area where cars are usually parked. The jury heard the trial testimony of Martha Villanueva and the forensic testimony. The inferences that appellate counsel draws from the trial testimony and argues were not the only inferences the jury could draw. The inference of inconsistency was argued to the jury. The jury found the defendant guilty.

The trial court is in the best position to assess the credibility of the witnesses and weigh the evidence. (People v. Hood (1994), Ill. App. 3d , , 638 N.E.2d 264, 272, citing People v. Collins (1985), 106 Ill. 2d 237, 261-62, 87 Ill. Dec. 910, 478 N.E.2d 267.) Determinations of the credibility of witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence, are responsibilities of the trier of fact. (People v. Thompson (1994), Ill. App. 3d , , 638 N.E.2d 363, 367, citing People v. Jimerson (1989), 127 Ill. 2d 12, 43, 129 Ill. Dec. 124, 535 N.E.2d 889; People v. Adams (1994), Ill. App. 3d , , 638 N.E.2d 254, 257, citing People v. Tye (1990), 141 Ill. 2d 1, 13, 152 Ill. Dec. 249, 565 N.E.2d 931.) Any conflicts in the testimony are to be resolved by the trier of fact. ( People v. Collins (1985), 106 Ill. 2d 237, 261-62, 87 Ill. Dec. 910, 478 N.E.2d 267.) The jury's role is to assess the credibility of and weight to be given each witness, and here the jury was aware of all the inconsistencies and possible motivation for testifying. (People v. Gill (1994), Ill. App. 3d , , 637 N.E.2d 1030, 1036; People v. Carter (1988), 168 Ill. App. 3d 237, 245, 118 Ill. Dec. 983, 522 N.E.2d 653.) In the instant case, as in the Gill case, the jury was aware of possible inconsistencies and possible motivation for testifying at trial and the trial Judge was also aware during the sentencing hearing. The trial court is in the best position to evaluate the testimony of the witnesses. We will not disturb that determination unless it is against the manifest weight of the evidence. At the sentencing hearing, the trial Judge had the opportunity to observe Martha Villanueva and stated Martha Villanueva was a credible witness.

We now turn to the issue whether the trial Judge considered a factor inherent in the offense of first degree murder at the sentencing determination.

The trial Judge said she considered the evidence heard at trial, the presentence report, the diploma of the defendant, the evidence in aggravation and mitigation, the statutory factors in aggravation and mitigation, the allocution of the defendant, the argument of the attorneys, and the letters from family members of the deceased.

The statutory factors in mitigation to be considered in the circumstances of the instant case include the following:

"(3) the defendant acted under a strong provocation;

(7) the defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime;

(8) the defendant's criminal conduct was the result of circumstances unlikely to recur;

(9) the character and attitudes of the defendant indicate that he is unlikely to commit another crime." 730 ILCS 5/5-5-3.1 (West 1992).

The statutory factors in aggravation to be considered in the circumstances of the instant case include the following:

"(1) the defendant's conduct caused or threatened serious harm;

(3) the defendant has a history of prior delinquency or criminal activity;

(7) the sentence is necessary to deter others from committing the same crime." 730 ILCS 5/5-5-3.2 (West 1992).

The trial Judge specifically stated she considered the following in sentencing the defendant. The defendant had no prior record. The licensed clinical psychologist and social psychologist witness who is particularly interested in cross-cultural aspects of human behavior and has experience in that aspect of human behavior, who interviewed and tested the defendant, indicated there is a likelihood of defendant's rehabilitation. Remorse was shown by the defendant. The pathologist witness indicated the killing of the victim was brutal and cruel. The defendant caused death to another and that death could not be minimized. The trial Judge said violence, jealousy and alcohol are deadly combinations. The record reflects the trial Judge specifically stated "And a sentence is necessary of imprisonment to deter others from committing the same crime."

There was some evidence that one week prior to the death of the victim an altercation between the defendant and the victim resulted in the defendant being charged with a misdemeanor battery. Subsequent to the trial Judge pronouncing the sentence imposed upon the defendant, the State moved for an order of nolle prosequi of the misdemeanor battery which the Judge entered. There was no evidence of prior law enforcement contact or court proceedings of criminal activity. There was evidence of the defendant's alien status.

The defendant proffered unrebutted testimony by the licensed clinical psychologist and social psychologist that the events which led to the confrontation, in a cross-cultural context, were likely to provoke the occurrence, that the defendant's conduct was the result of circumstances unlikely to recur, and the character attitudes of the defendant indicate that he is unlikely to commit another crime.

The trial Judge said she considered that defendant caused the death of the victim; the death could not be minimized and the sentence was necessary to deter others from committing the same crime.

The general rule is that a factor necessarily implicit in a crime should not be used as an aggravating factor when sentencing for that crime. ( People v. Conover (1981), 84 Ill. 2d 400, 404, 50 Ill. Dec. 638, 419 N.E.2d 906.) According to the policy underlying this rule, it is reasonable to conclude that the legislature already considered the death of the victim as a factor when establishing the penalties for murder. ( People v. Pierce (1991), 223 Ill. App. 3d 423, 441, 165 Ill. Dec. 859, 585 N.E.2d 255.) The sentence of 50 years was within the established penalties for first degree murder.

In People v. Saldivar (1986), 113 Ill. 2d 256, 100 Ill. Dec. 776, 497 N.E.2d 1138, a case involving voluntary manslaughter, the trial court found as the primary statutory factor in aggravation "'the terrible harm that was caused to the victim.' The trial Judge also mentioned that the defendant's conduct caused death and that a human life was taken." ( Saldivar, 113 Ill. 2d at 264.) The supreme court said the circuit court referred to the death of the victim in the following manner: "'The number one factor in aggravation--there are some that come to a lesser degree, but the one that is probably the most serious is the terrible harm that was caused to the victim. And the victim is dead today.'" ( Saldivar, 113 Ill. 2d at 272.) The conviction was affirmed, the sentence modified, and the mandate was issued forthwith.

Later, in People v. Martin (1988), 119 Ill. 2d 453, 116 Ill. Dec. 669, 519 N.E.2d 884, a case involving involuntary manslaughter, the supreme court remanded the case for resentencing where there was substantial mitigating evidence, and aside from the death of the victim the only other aggravating factor expressed by the court was that the sentence was necessary to deter others. The offense of involuntary manslaughter involves an unintentional act. The comment by the trial Judge that the sentence was necessary to deter others was inconsistent with the unintentional nature of involuntary manslaughter. It is exceedingly difficult to deter unintentional conduct (119 Ill. 2d at 459). A rational inference from the remarks in the trial court was that the sentencing Judge focused on the death of the victim. The Martin case was remanded for resentencing. The Dissent was based upon the failure to raise the issue in the trial court and the appellate court. Martin, 119 Ill. 2d at 463-64 (Ryan, J. Dissenting).

In People v. Bennett (1992), 222 Ill. App. 3d 188, 164 Ill. Dec. 426, 582 N.E.2d 1370, the defendant was found guilty on two counts of first degree murder. One of the issues raised on appeal was whether the trial court relied on improper factors in aggravation. The court considered the death of the victim as one of the factors. We said the court should not have considered the death of the victim as a factor in aggravation when sentencing a defendant for murder. Bennett, 222 Ill. App. 3d at 204.

In the instant case, in its brief, the State argues that the trial Judge "gave no weight to the factor inherent in first degree murder that the defendant caused the decedent's death," and further argues in its brief that "where it can be determined from the record that the weight placed on an improperly considered factor was so insignificant that it did not lead to a greater sentence." That argument is specious. The trial Judge never expressed any degree of weight, nor can it be determined from the record what significance the trial Judge placed on the death of the victim. The statements by the State in its brief when considered alone might lend credence to its argument if the trial Judge had expressed any comment about the weight or significance. The trial Judge gave no indication as to the weight the court gave to any specific factor in mitigation or in aggravation, and the Conclusion asserted by the State is not supported by the record.

In the discourse at the sentencing hearing, the trial Judge spoke of situations unrelated to the facts and circumstances of this case. She spoke of witchcraft trials, child abuse, ritualistic facial scaring, supernatural beliefs, rape, incest and severing an arm. The trial Judge did not specifically relate, nor did she suggest by her references to any of the aforesaid situations, the weight or influence her comments gave to the sentence imposed upon the defendant. It becomes difficult to determine, without further explication, whether the trial court considered or gave weight to any of the situations of which she spoke or the weight given to the death of the victim as a factor in the sentencing of the defendant.

First degree murder includes the death of a victim. The verdict was "guilty of first degree murder (intent to kill)." Death is a factor implicit in the offense of first degree murder. Death is greater than the aggravating factor of causing or threatening serious harm. Contrary to the Conclusion and argument of the State, without being able to read the mind of the trial Judge, we are unable to determine the weight the trial Judge gave to her Conclusion that "The aggravation is, obviously, that he caused death to another."

Having determined that the trial court considered an improper aggravating factor in imposing the sentence, we must now determine if remand for resentencing is required. "In People v. Bourke, (1983) 96 Ill. 2d 327, 70 Ill. Dec. 734, 449 N.E.2d 1338, our supreme court held that, 'where the reviewing court is unable to determine the weight given to an improperly considered factor, the cause must be remanded for resentencing. [Citations.] However, where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required.' (Emphasis added.) [Citation.]" People v. Pierce (1992), 223 Ill. App. 3d 423, 441, 165 Ill. Dec. 859, 585 N.E.2d 255.

Accordingly, we reverse the judgment of the trial court and remand the cause for a sentencing hearing before a different Judge.

Reversed and remanded with directions.

WOODWARD and QUETSCH, JJ., concur.

19941101

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