APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
PRESIDING JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant, Harold Lester, was found guilty of voluntary manslaughter and sentenced to 36 months' probation. On appeal defendant argues that (1) the court erred in failing to suppress statements made by defendant, (2) his claim of self-defense was not disproved beyond a reasonable doubt, (3) error occurred when the State introduced evidence of the victim's reputation as a quiet and peaceful man in its case-in-chief, and (4) error occurred when the State introduced evidence impeaching defendant's good character before defendant put on evidence of his good character. We affirm.
On the night of May 27, 1978, defendant and the victim, Fondora Garcia, were "bumming money" and using it to purchase wine, which they drank. At approximately 1:30 a.m. on May 28, they purchased a bottle of wine at a liquor store at 4017 N. Sheridan in Chicago. At approximately 2 a.m., a police officer observed the victim leaning against a building in the vicinity of 4019 N. Sheridan. The victim was pouring wine in a cup. The officer had seen the victim under the influence of alcohol hundreds of times before, and he stopped his car and approached the victim. The victim seemed happy, semi-conscious and highly intoxicated. In response to the officer's inquiry, the victim said he did not want to go to jail. The officer frisked the victim and did not find any weapons. He then poured the wine on the sidewalk and told the victim to go home. The officer noted that defendant was sitting in a wheelchair to the right of the victim, and that both of defendant's legs had been amputated. The officer did not search defendant and could not say whether defendant was under the influence of alcohol at that time.
Around 2:30 a.m., two other police officers observed the victim lying against a building at approximately 4019 N. Sheridan. When they attempted to awaken the victim, the victim's coat fell open and one of the officers saw what appeared to be blood. As the officers attempted to revive the victim, he stopped breathing. No weapon was found in the vicinity of the victim. The two officers who found the victim arrested defendant between 5-5:30 a.m. following a call from the dispatcher that someone was being held for the police at the gas station at Sheridan and Irving Park Roads. Defendant was discovered behind the gas station.
According to statements given by defendant at the police station, after the police poured out the wine that he and the victim were drinking, the victim became angry with defendant for drinking too much wine. The victim pulled a knife from his pocket and came at defendant. Defendant gave conflicting statements as to what happened next. At first he said that he grabbed the victim's wrist, bent the knife back towards the victim's chest and struck him twice. Later, he said that he removed the knife from the victim's hand and then stabbed him twice. He fled to a nearby gas station because he became frightened. He threw the knife down an alley near the gas station and then fell asleep. He was subsequently awakened by a woman and three men. The woman screamed, "You killed Junior," and the men held him at the gas station while the woman called the police.
At approximately 6:35 p.m. on May 28, a court reporter took defendant's statement. The assistant State's Attorney declined to place charges against defendant at that time. However, defendant was rearrested on May 31.
We first address defendant's argument that the statements he made following his arrest on May 28 should have been suppressed because they were obtained by coercion. At the hearing on the motion to suppress, defendant testified that he was suffering the effects of a two-week drinking binge and was vomiting and having diarrhea attacks. An investigator told defendant that if he would make a statement that he stabbed the victim in self-defense while they struggled over the knife, he would be released. The investigator also informed defendant that a prostitute had witnessed the stabbing and that he had other witnesses as well. In a later conversation between defendant and the investigator, which took place after another officer had asked defendant about the lack of blood on his clothes, the investigator told defendant to say that he took off his bloodied T-shirt and threw it in a garbage can. He further told defendant to say that he had thrown the knife down the alley. According to defendant, no one else was present when these conversations took place.
Defendant also testified that he was questioned by two assistant State's Attorneys at 1:30 p.m. and 4:45 p.m. He gave them a statement at 6:30 p.m., which was recorded by a court reporter. Defendant initialed each page of the statement and signed it. He was then released. During the more than 13 hours that he was in custody, he was not given any food.
The investigator who allegedly told defendant to plead self-defense also testified at the hearing on the motion to suppress. According to his testimony, he gave defendant Miranda warnings before each interview he had with defendant. At no time did defendant request an attorney. At the 9 a.m. interview, which lasted approximately 20 minutes, defendant denied committing the stabbing. At 11 a.m., the investigator again interviewed defendant, and defendant gave a statement about his involvement in the victim's death.
According to the investigator, defendant did not appear intoxicated or hungover, nor did he say he was not feeling well. He asked to go to the washroom, but did not vomit. Further, defendant was given water and cigarettes when they were requested. Sandwiches were placed on the table next to defendant, who was not handcuffed, but they apparently went untouched.
The two assistant State's Attorneys who interviewed defendant at approximately 1:30 p.m., 4:30 p.m. and 6:30 p.m. testified that defendant was given Miranda warnings at each interview and that defendant understood them. At the 4:30 p.m. interview, one of the assistant State's Attorneys asked defendant how he had been treated by officers at the police station, and he responded that he had been treated "okay." Charges against defendant were not filed on May 28 because in the third interview with defendant the blood-stained T-shirt was first mentioned, and a different version of the specific disposition of the weapon was given.
• 1 The test for the admission of a confession is whether it was made freely, voluntarily and without compulsion or inducement of any sort, or whether the defendant's will was overcome at the time he confessed. In determining whether a statement was voluntarily given, the totality of the circumstances must be considered. (People v. Boyd (1980), 88 Ill. App.3d 825, 848, 410 N.E.2d 931, 948.) Factors to be considered include the giving of Miranda warnings, the time elapsed between the arrest and the confession, the presence of any intervening circumstances, and the flagrancy and purpose of the official misconduct. (People v. Lucas (1980), 88 Ill. App.3d 942, 949, 410 N.E.2d 1040, 1045.) The State has the burden of proving that a confession was voluntarily given. Ill. Rev. Stat. 1979, ch. 38, par. 114-11(d).
In the present case, defendant did not present any evidence contradicting the testimony of the State's witnesses that he was given Miranda warnings each time he was questioned or showing that he lacked the capacity to appreciate those warnings. Defendant was in custody for slightly more than 13 hours, and he was questioned only intermittently and generally for short periods of time. He was not handcuffed. The police investigator denied making the statements attributed to him by defendant. His testimony also contradicted that given by defendant in regard to defendant's physical well-being while he was at the police station.
• 2 The trial court, in denying defendant's motion to suppress statements, stated that the question involved was essentially one of credibility. The court stated that after observing defendant and the investigator testify, it believed that defendant did not testify truthfully and that the investigator testified truthfully in all material respects. Under the circumstances of this case, we believe that the credibility of these witnesses and the weight to be given their testimony was properly determined by the trial court. (People v. Zamp (1980), 84 Ill. App.3d 688, 694, 406 N.E.2d 96, 101.) We believe that the State proved by a preponderance of the evidence (see People v. Avery (1980), 88 Ill. App.3d 771, 775, 410 N.E.2d ...