¶1dissenting:
¶2In determining that death is not the appropriate sentence here, the majority relies on People v. Carlson (1980), 79 Ill. 2d 564, another case in which a sentence of death was found to be excessive. The majority points to certain factual similarities between this case and Carlson and concludes that the same result is warranted here. I disagree, for the two cases are fundamentally different, and in the circumstances present here I would not disturb the trial judge’s finding that the death sentence is appropriate. Accordingly, I dissent.
¶3In Carlson the defendant shot and killed his former wife and set her house on fire; several hours later, at the time of his arrest, the defendant shot and killed a police officer. The State sought the death penalty for the officer’s murder, and the defendant was sentenced to death in a bench proceeding. On appeal this court held that in imposing the death penalty the trial judge had disregarded or ignored several important mitigating circumstances that were present in that case. First, the court found that the trial judge had incorrectly considered the offenses leading up to the officer’s murder as evidence of a history of criminal conduct. The defendant had no other record of criminal activity, and together the offenses could be viewed as “all a part of one unfortunate and tragic event.” 79 Ill. 2d 564, 588.
¶4Also, the court in Carlson rejected the trial judge’s finding that the defendant was not acting under an extreme mental or emotional disturbance at the time of the officer’s murder. Rather, the evidence showed that in the several years preceding the murder of the police officer the defendant had suffered a number of serious physical ailments, including two heart attacks, and that during that time he had undergone “a slow grieving process related to the loss of the affection of his wife” (79 Ill. 2d 564, 585). This evidence supported a psychiatrist’s testimony that the defendant was distraught and suicidal at the time he killed the officer. Carlson also explained that the trial judge, in rejecting the expert testimony, had misunderstood the basis for the psychiatrist’s opinion.
¶5Finally, as further evidence of mitigation, the court in Carlson noted favorably the defendant’s concern for the well-being of his son, apparent in the defendant’s attempts shortly before his arrest to relay a sum of money to the child. (79 Ill. 2d 564, 589-90.) In light of those mitigating circumstances, which the trial judge had disregarded or failed to consider, the court in Carlson held that the sentence of death was excessive, that the circumstances present in that case did not “bespeak a man with a malignant heart who must be permanently eliminated from society.” 79 Ill. 2d 564, 590.
¶6To be sure, this case is similar to Carlson in certain respects. Like the defendant in Carlson, the defendant here was a man in his forties with no criminal record, and here, as in Carlson, the conduct for which the defendant was sentenced to death stemmed from marital conflict. In other, more important respects, however, the two cases are different, and I do not believe that Carlson governs here.
¶7The majority’s description of the events preceding the tragic fire here suggests that the defendant’s conduct was an isolated occurrence provoked or triggered by a dispute with his wife that began over telephone calls from her lover and ended with a taunt or revelation concerning the paternity of two of the family’s six children. This is misleading, however, for it obscures an important ground on which the trial judge relied in sentencing the defendant: that the defendant had planned all along to set the fire. Indeed, the majority fails to question or consider why the defendant happened to have the gasoline with him at the time of the argument with his wife. The explanation offered by the defendant — that he purchased the gasoline that night for use in a lawn mower and was storing it in the bedroom to keep it from his oldest son because the gasoline had value and his son was a thief— was contradicted by the prosecution in several respects. Specifically, the State introduced evidence showing that the family did not own a gasoline-powered mower at the time in question and that the lawn was regularly cut by one of the sons, who for that purpose would borrow a gasoline-powered mower from a neighbor. The trial judge expressly rejected the defendant’s explanation for the purchase of the gasoline and found instead that the defendant had obtained it for the purpose to which it later was put.
¶8Moreover, the trial judge carefully considered the psychiatric evidence presented by the defendant and the State and concluded that the defendant was not acting under an extreme mental or emotional disturbance at the time of the offenses. The trial judge believed that the defendant was “extremely angry” rather than extremely depressed and, in addition, found that the defendant was not intoxicated when he set the fire. In sentencing the defendant to death, the trial judge explained:
“So I will have to find that he was not under the influence of extreme mental or emotional disturbance. That he deliberately and coolly planned to do what he did. He took the time to go out and purchase the gasoline and, in a container, come back to his home, splash it upon his wife, up and down the stairs, set the place on fire with the apparent knowledge that at least most, if not all of his family were in there.
I feel this is a most vicious, brutal and heinous crime. I feel that the application of the death penalty should be imposed. Accordingly, the defendant will be sentenced to death ….”
¶9I would note too the evidence of other acts of violence involving the defendant: that he was involved in a knife fight with a woman, and that during a family quarrel he fired a gun at his oldest son. On the night of the fire, the defendant’s wife and all but one of the children were in the house; as the trial judge found, the defendant’s violent plan threatened the lives of all the occupants, and two members of the family died. The mitigating circumstances found to exist in Carlson are for the most part absent here, and taken with the defendant’s past conduct, the offenses committed in this case, I believe, could be considered to “bespeak a man with a malignant heart” (People v. Carlson (1980), 79 Ill. 2d 564, 590). In setting aside the death sentence here as excessive, the majority substitutes its judgment for that of the trial judge. The decision to impose the death penalty finds ample support in the record, and I would let it stand.
¶10JUSTICE MORAN joins in this dissent.