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.
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 Click 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 initialled 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.
Here, the trial judge could have believed the officers Click 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,
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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.
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 Click 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 initialled 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.
Here, the trial judge could have believed the officers Click 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.
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 dining 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 occurrence. The supreme court reasoned that an estoppel should have been invoked because the only issue on the statutory rape charge was whether the intercourse occurred and the acquittal conclusively established that it was not proven.
In Ashe v. Swenson (1970), 397 U.S. 436, 444, 25 L. Ed. 2d 469, 475-76, 90 S. Ct. 1189-94, the United States Supreme Court ruled that under certain circumstances, the Fifth Amendment privilege against double jeopardy precludes the introduction against a defendant of evidence of prior conduct attributed to him if his commission of that conduct was an issue in a prior jury trial which resulted in his acquittal. That court ruled that evidence of such conduct is inadmissible in the subsequent case if an examination of the entire record in the prior case shows that a “rational jury” could only have “grounded its verdict” upon a resolution of the issue which he “seeks to foreclose from consideration” in the subsequent case.
Defendant contends that the only rational basis to explain the verdict of the prior jury, acquitting him of deviate sexual assault, is that the jury decided that the proof of oral sex was insufficient. He argues that had that jury decided to acquit on the basis that the proof was insufficient to show his use of force and the lack of consent by the prosecutrix, that jury, to be rational, would also have been required to acquit him of the rape charge, which they were not able to do. His argument is based upon the supposition that the proof of use of force and lack of consent was the same as to both offenses. Neither the defendant nor the prosecutrix testified that either the oral sex or intercourse occurred with her consent. He testified that neither occurred. She testified that both occurred as a result of force and against her will. However, defendant did testify to making certain advances to the prosecutrix to which she consented just prior to the time that the oral sex was alleged to have occurred and admitted to slapping her at a later time nearer the alleged intercourse. The first jury could rationally have had a collective reasonable doubt as to the lack of consent as to the deviate acts without reaching the same conclusions as to the lack of consent to the intercourse. The prior acquittal could rationally have been based upon a determination that the proof failed as to either the commission of the deviate acts or the use of force and lack of consent. The trial court correctly ruled that the collateral estoppel rule was not applicable.
The State also introduced, over the defendant’s objection, the testimony of a friend of the victim who was an optometrist. He stated that, after the occurrence, she drove to his office and told him that defendant had raped her. We need not determine whether, as defendant claims, the lapse of time between the acts and the victim’s statement to the witness prevents this testimony from qualifying for admission under the excited utterance exception to the hearsay rule. (See People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804; People v. Parisie (1972), 5 Ill. App. 3d 1009, 287 N.E.2d 310.) In any event, the corroborative statement exception prevents the introduction of the testimony from being reversible error. Under that rule, evidence of a statement by a rape victim that she has been raped is admissible to rebut any inference that she had not been forced to engage in intercourse which might arise from her failure to complain. (People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25.) This rule permits a longer time lapse between the act and the statement where, as here, the time lapse is explained by the witness’ reluctance to excite the elderly lady who was the only other person present in the building where the acts occurred. The rule does not permit the introduction of evidence that the victim named the perpetrator of the offense (Damen) but where, as here, that person’s identity is not disputed, we have ruled the error to be harmless (People v. Hayn (1976), 34 Ill. App. 3d 1029, 341 N.E.2d 182). No reversible error occurred here.
The sentence of 14 to 50 years was severe. However, the crime of rape involves a severe deprivation of the rights of the victim even though a weapon is not used. The evidence at sentencing showed a long record of petty criminal conduct by defendant in addition to a prior conviction in Nebraska for assault with intent to rape and a Federal conviction for auto larceny. The trial judge properly considered not only the indication that rehabilitation of defendant would be very difficult but also the needs of society to be protected from him. The sentence was not an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.
The conviction and sentence are both affirmed.
Affirmed.
TRAPP, J., concurs.