APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The defendant was convicted of voluntary manslaughter and sentenced to a term in the penitentiary of not less than 8 nor more than 20 years. From this conviction and sentence he appeals on several grounds, which we will consider separately.
The defendant first challenges his conviction on the ground that his defense counsel was incompetent in that he failed to more, prior to or at the trial, for the suppression of a certain statement which the defendant made to the police and which the State used later to impair his credibility.
The circumstances giving rise to this contention are as follows: The defendant was wounded in an incident in which the other person was killed. He was taken to the hospital immediately after the incident for treatment of his wound and during such treatment the doctor administered 75 milligrams of Demerol, a narcotic, and 25 milligrams of Phemergen, a tranquilizer. The doctor testified they were administered simply as a pain killer; further, that the effect of these drugs might last as long as 3 to 4 hours and might have the effect (although it would not necessarily do so) of making the patient sleepy or less alert. Within an hour or two after being treated at the hospital the defendant was taken to the police station where, after the proper Miranda warnings, he gave a statement in writing to the effect that he did not shoot the deceased and, in fact, did not have a gun that night at all. The next day about noon (according to the police testimony) the defendant stated he wanted to clear up some points in connection with his statement of the night before. At that time the defendant made and signed a second statement (again after being warned as to his rights) in which he stated he had, indeed, shot the deceased, but that he had done so in self-defense.
At the trial, the defendant took the stand in his own behalf and after his testimony the State introduced the two inconsistent statements for the purpose of impeaching the defendant's testimony.
The defendant now contends his attorney should have moved to suppress the first statement as having been made under the influence of drugs and that his failure to do so amounted to such incompetency as to have deprived defendant of proper representation, thus justifying reversal of his conviction and a new trial.
On this point we note that just prior to trial defendant told the court, in the presence of his attorney and the State's Attorney, that he had given both statements freely and voluntarily and after being advised of his rights. Also implicit in defendant's contention that his trial counsel was incompetent in not moving to suppress the first statement is the assumption that, if timely made, the motion to suppress would have been granted. From a review of the record we are of the opinion that the statement was not subject to being suppressed as an involuntary or coerced statement.
• 1 A statement or confession, whatever the intended use, is not automatically subject to suppression on the sole ground that a drug has been administered to the defendant making the statement. In order for the confession to be suppressed as being involuntary it must appear by the evidence that the defendant's "will was overborne". Reck v. Pate (1961), 367 U.S. 433, 6 L.Ed.2d 948, 81 S.Ct. 1541.
• 2 On the basis of testimony of the administering doctor, which is all of the medical testimony available from the record, there is certainly no showing that the drugs administered to the defendant so affected his mental processes as to make his first statement to the police involuntary. Also, based on the testimony of the defendant, the two officers who took the statements, and the doctor, the record reflects that the defendant was reacting and responding in a normal manner just prior to and at the time he made the first statement. Inasmuch as the statement objected to was given after defendant was advised of his rights under Miranda, and was in no way shown to be involuntary, the statement was properly used to impeach his later testimony.
In view of the above, the question of trial counsel's incompetency is not well taken and we will not pursue it further, except to note (in fairness to defense counsel) that the trial judge in summing up at the end of the trial said, "This case was very well tried, in my opinion, by both sides of the case."
For the second main point of his brief, the defendant contends that "because defendant acted in self-defense he was not properly proved guilty of voluntary manslaughter beyond a reasonable doubt." Whether or not the defendant acted in self-defense is a matter for the jury. In People v. Smith (1972), 7 Ill. App.3d 912, 915, the court said:
"The court in People v. Johnson, 108 Ill. App.2d 150, 247 N.E.2d 10, at page 156 said:
`It is not our function to substitute our judgment for that of the jury since whether a killing was justified under the law of self-defense is a question of fact for the jury [citations] and when, as here the evidence is conflicting, it is the function of the trier of fact to resolve the conflict and determine the credibility of the witnesses. [Citation.]'"
The jury did not find the defendant had acted in self-defense but found him guilty of voluntary manslaughter as charged in the indictment. There is substantial evidence in the record to support the verdict, therefore, we do not agree with defendant's claim in this regard. We find the ...