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 ...