APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN E. SYPE, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Defendant, Michael Alfred Krueger, was convicted of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1) after a jury trial and was sentenced to 20 to 50 years imprisonment. The issues on appeal are whether the trial court erred in denying defendant's motion to suppress statements and in excluding evidence of the victim's sexual propensities.
The relevant facts may be summarized as follows: Defendant was charged by information with the August 28, 1976, murder of James Finnegan and, before trial, he moved to suppress oral and written statements he had given police officers after his arrest. He contended he was denied the right to counsel when the statements were made. At the hearing of defendant's motion, three Rockford police detectives testified defendant had been arrested on November 4, 1976, on the basis of information supplied by his girlfriend. He was advised of his Miranda rights and signed a rights waiver form. The officers initially questioned him about an unrelated burglary, and defendant gave a written inculpatory statement relating to that offense. When the officers then asked him about the Finnegan homicide, Detective Otwell testified, defendant said, "Hey, you're trying to pin a murder on me. Maybe I need a lawyer." Detective Donnelli stated defendant said, "Wait a minute. Maybe I ought to have an attorney. You guys are trying to pin a murder rap on me, give me twenty to forty years." Detective Galvanoni testified defendant said, "Just a minute. That's a twenty to forty years sentence. Maybe I ought to talk to an attorney." Detective Otwell then told defendant they didn't know whether it was a murder; only two people knew what had happened and one of them was dead. Defendant then asked the officers how they knew it wasn't self-defense and when they said they didn't know, defendant told them about his altercation with the deceased and signed a written statement in which he admitted stabbing Finnegan but claimed it was in self-defense. The next day the officers again questioned defendant; he stated he understood his rights and gave an oral statement regarding the stabbing.
Defendant testified at the hearing of his motion to suppress that when the officers asked him about the person he had stabbed on Market Street he told them he thought he should talk to an attorney but they continued to question him and he got the idea they didn't hear him ask for a lawyer. On cross-examination defendant testified he continued to talk because he thought it would do no good to keep asking for an attorney and he didn't want to be up all night being "badgered" by the three detectives. He also testified he continued talking to them
"* * * [b]ecause I believed it was self-defense. I still do. They wanted a statement of what happened to clear it up. I wanted to get it off my chest, so I gave them a statement.
[Assistant State's Attorney]: But you know you had a right to have an attorney there if you wanted one, didn't you?
[Defendant]: Yes, I did."
The trial court denied defendant's motion to suppress.
On the first day of trial the State made a motion in limine to prevent defendant from presenting evidence regarding Finnegan's aggressive homosexual tendencies unless he also presented evidence they were known to defendant prior to the stabbing. The trial court ruled that defendant could not cross-examine the State's witnesses concerning such tendencies, but could later recall those witnesses if a sufficient foundation for the admission of such evidence was laid.
At trial the State introduced the testimony of the three detectives together with defendant's written statement in which he stated Finnegan had approached him near a bar where defendant had been drinking and defendant got into Finnegan's car. While they were driving Finnegan made several homosexual advances toward defendant which he resisted but when Finnegan forcefully continued his efforts defendant pulled out a knife and in a struggle for it Finnegan was stabbed. The car in which they were riding swerved and ran into a building; defendant ran from the scene. He told the officers he did not intend to rob Finnegan. Sharon Sularz, defendant's girlfriend, testified defendant told her that Finnegan made homosexual advances, which defendant resisted, and that defendant demanded Finnegan's wallet. Defendant also told her Finnegan said he had no money and hit defendant in the mouth and, as they struggled, defendant stabbed Finnegan.
At the close of the State's case defense counsel sought to introduce evidence of the victim's reputation for aggressive sexual behavior through the testimony of the victim's roommate, who would testify the victim often picked up strange men on the street for sexual activity and had an extremely strong sex drive. The trial court reserved ruling until after defendant testified.
Defendant's testimony was substantially the same as his earlier statement to police. He did not testify he had any prior acquaintance with Finnegan or that he had previously heard anything about him. The trial court then refused defense counsel's request to call two witnesses to testify concerning Finnegan's reputation for aggressive sexual behavior on the ground it was not known to defendant and it was not evidence of a violent character which could have influenced defendant's conduct.
1 Defendant's first contention on appeal is that the trial court erred in denying his pretrial motion to suppress his oral and written statements. He argues they were obtained through interrogation which was continued after he requested counsel and for that reason should have been suppressed in accordance with Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. In Miranda the Supreme Court held that statements made by a defendant during custodial interrogation may not be admitted in evidence against him unless the State demonstrated the use of procedural safeguards to secure defendant's privilege against self-incrimination. Under Miranda, prior to questioning, the accused must be told he has the right to the presence of an attorney and if "he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." (384 U.S. 436, 444-45, 16 L.Ed.2d 694, 707, 86 S.Ct. 1602, 1612.) Defendant argues his suggestion to police that perhaps he should speak to an attorney constituted a sufficient indication under Miranda that he wished to consult with an attorney before speaking and, therefore, statements made by him to police after this "request" must be suppressed. We do not agree.
Defendant in the case at bar did not invoke his right to the presence of an attorney. Under Miranda if "the individual states that he wants an attorney, the interrogation must cease until an attorney is present." (384 U.S. 436, 474, 16 L.Ed.2d 694, 723, 86 S.Ct. 1602, 1628.) Defendant did not state he wanted an attorney but suggested only that "maybe" he should talk to one. We do not find that this ambiguous statement by defendant can alone serve as a ...