APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendant James A. Kennedy was charged in the circuit court of Macon County with the offenses of rape and deviate sexual assault alleged to have been committed against the same victim on July 30, 1976. At the first trial of the case the jury returned a not guilty verdict on the deviate sexual assault charge and then the jury was discharged after being unable to agree as to a verdict on the rape charge. At a second jury trial he was convicted of rape. Subsequently, a sentence of 14 to 50 years' imprisonment was imposed.
On appeal defendant maintains that the court erred in (1) refusing to suppress statements made by him to police officers while in custody and without either being represented by counsel or having waived right to counsel, (2) admitting into evidence the foregoing statements which were prejudicial to defendant, (3) admitting into evidence testimony concerning the alleged deviate sexual assault of which defendant had been acquitted, and (4) permitting a witness to testify that the alleged victim had told him she had been raped by the defendant. Defendant also argues that his guilt was not proved beyond a reasonable doubt and that the sentence was excessive.
1 Details of the evidence need not be related. Defendant and the victim were both employees of a religious group. The rape is alleged to have occurred in that group's house of worship in the early afternoon. Although an elderly lady was also then in the building, there were no eyewitnesses. The defendant admits that he made advances to the victim but contends that she consented and that no intercourse occurred. The determination as to whether to believe the victim or the defendant was for the jury. A reasonable jury could have concluded that defendant was proved beyond a reasonable doubt to have raped the victim.
The evidence presented at the hearing on the motion to suppress showed that officers interrogated defendant at the police station where he had been taken into custody, three times: once in the early evening of the day of the alleged offense and shortly after he was taken into custody, once in the middle of that night, and once the next morning. No evidence of any conversation at the first interview was admitted at trial, a little of the second interview was admitted and more of the third interview was also admitted.
At that hearing, officers Glick and Hannon testified that after explaining to defendant his Miranda rights, they presented him a form which set forth separately the elements of those rights. Defendant then initialed lines on the form which appeared at the end of each element. Defendant also wrote in several places on the sheet that he denied the charges and wanted a lawyer. At the bottom of the form appeared a statement that the person signing the form acknowledged having read the form and understanding the rights stated therein. The statement also said the person signing wished to talk to the police. At the side of that statement, defendant wrote: With ATTORNEY PRESENT." Defendant signed the form.
The officers agreed that at the time defendant indicated a desire to talk with them but only with a lawyer present and that he requested the immediate appointment of a lawyer. The officers then informed him that such an appointment could be made only by the court. The two witnesses agreed that defendant then decided to phone a lawyer whom he knew. It turned out that this lawyer was an officer of the defendant's employer. The lawyer was phoned at the religious group's place of worship.
The defendant's testimony at the hearing did not substantially dispute the officers' testimony as to the conversation prior to the phone call except that defendant stated that the form was not executed until after the phone call. The testimony of the conversation after the phone call is sharply in dispute and goes to the heart of the issue raised by the motion. The officers maintain that defendant told them that the lawyer had advised him to go ahead and talk to the police. Defendant says that he told them that the lawyer had told him that he, the lawyer, could not come to the jail at that time but might come later and advised the defendant not to speak to the police. In any event, an interrogation of about one hour's length ensued. The record shows nothing of the substance of the interview other than defendant's statement that he continued to deny any guilt.
Officer Edgar E. Combs and Detective James Dellert testified for the State as to the interrogation held in the middle of the night and the next morning which they respectively conducted. Each testified that defendant made no further demand for a lawyer and explained that he had talked to a lawyer who advised him to go ahead and talk to the police. Defendant, on the other hand, testified that he continually demanded counsel but was refused and did not tell the officers that his lawyer had advised him to talk to them. Defendant also testified that he had read some law while an inmate of a Federal penitentiary and understood that statements given to police by an accused at a time when an accused had not been offered his right to counsel would be inadmissible. He stated that because of this understanding and because he was getting tired, he made some statements believing that they could not be used against him anyway.
The trial court found that defendant was advised of, understood, and waived his rights and voluntarily made a statement. The evidence was abundant of the advice of rights given by the officers. The defendant did not contend that he did not understand his rights and in fact testified to having studied the law on the subject. The meat of his argument is that once he had demanded counsel, the officers should not have attempted further interrogation. In People v. Morgan (1977), 67 Ill.2d 1, 364 N.E.2d 56, however, the supreme court has recently ruled that although an accused initially refuses to submit to in-custody interrogation without counsel and has been frustrated in his attempt to obtain counsel, further in-custody questioning may be conducted by the police if the accused freely consents. There the accused after being unable to obtain counsel decided to go ahead without a lawyer because one might confuse him.
2 Here, the trial judge could have believed the officers Glick and Hannon rather than the defendant and determined that the defendant freely decided to permit further interrogation after the phone call to the lawyer. It would be rather unusual for a lawyer to advise an accused to freely talk to law enforcement officers but the trial judge heard the testimony and viewed the witnesses and is in a better position than this court to judge their credibility. Furthermore, regardless of what the lawyer actually told the defendant, if the defendant actually told the officers that he had been advised to go ahead and talk, the officers were justified in considering that statement in determining whether to proceed.
Defendant relies on People v. Medina (1976), 37 Ill. App.3d 1029, 347 N.E.2d 424, People v. Washington (1976), 41 Ill. App.3d 475, 354 N.E.2d 501, and our decision in People v. Holmes (1977), 53 Ill. App.3d 856, 368 N.E.2d 1329, all appellate court cases decided before Morgan. In Medina, the court upheld a trial court's suppression of a statement obtained during in-custody interrogation where the defendant was unrepresented by counsel. The ruling was supported by evidence that the officers knew that the accused had been advised by counsel not to talk but, after first refusing to do so, had later consented after being told that other witnesses had identified him as a perpetrator of the crime. In Washington, as in Morgan, the defendant had been frustrated in his attempt to obtain counsel and then decided to permit interrogation without counsel. In Holmes, the questioning continued without indication of waiver.
We conclude that the factual determination necessary to a denial of the motion to suppress was not contrary to the manifest weight of the evidence and that the ruling was not erroneous as a matter of law.
3 The victim testified that before forcing her to have intercourse, the defendant forced an act of oral sex upon her. This alleged act of oral sex was the basis of the charge of deviate sexual conduct upon which defendant was acquitted at the previous trial. He contends that the admission of the testimony over his objection and contrary to the request of his in limine motion was reversible error. His argument is based upon the theory of collateral estoppel. In People v. Haran (1963), 27 Ill.2d 229, 188 N.E.2d 707, the supreme court ruled reversible error to have occurred when in a trial on a charge of crime against nature, the trial court permitted the State to introduce evidence of intercourse between the defendant and the victim during the same episode in which the crime was alleged to have occurred. The defendant had been previously acquitted of a charge of statutory rape arising from that ...