{
  "id": 1593997,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Albert A. Ojeda, Defendant-Appellant",
  "name_abbreviation": "People v. Ojeda",
  "decision_date": "1969-06-06",
  "docket_number": "Gen. Nos. 53,433, 53,434",
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  "last_updated": "2023-07-14T16:55:40.138507+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Albert A. Ojeda, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE BURMAN\ndelivered the opinion of the court.\nThe defendant, Albert A. Ojeda, was charged with speeding and with driving a motor vehicle while under the influence of intoxicating liquor. He pleaded not guilty, waived a jury trial, and upon being found guilty as charged, he was fined $15 and $5 costs on the speeding charge and $200 and $5 costs on the drunken driving charge.\nThe defendant contends, on appeal, that (a) the conduct of the trial court was prejudicial, (b) the court erred in failing to call an additional witness and (c) that the defendant was not proven guilty beyond a reasonable doubt.\nWe turn first to the consideration of whether the remarks of the trial court were prejudicial and resulted in an unfair trial. The record, which is incomplete, shows that Officer Burns testified that at 5:30 a. m. on January 28, 1968, he was in a one-man car when he saw defendant\u2019s car pull over to the side of Fullerton Avenue. He stated that he observed the female driver of the automobile, Miss Schultz, change places with a male passenger, the defendant. The defendant then drove away at an excessive rate of speed, 45 miles per hour in a 30-mile per hour zone. After stopping the car some distance away, Officer Burns ordered the defendant out of the car. Upon noticing the odor of liquor on the defendant\u2019s breath, he had the defendant taken to a police station. Officer Burns further testified about various things he observed about the defendant, of certain tests given to the defendant and the results of those tests. In the officer\u2019s opinion, the defendant was under the influence of liquor. He gave the defendant two tickets and took his driver\u2019s license. The testimony of the officer was the only evidence offered by the State.\nThe defendant testified that when the officer stopped his car he was sitting on the passenger side of the automobile. He said that the officer asked his female companion, who was driving, for her driver\u2019s license, but that she did not have one. On cross-examination he said that he was not feeling well when he left a restaurant and for that reason he let Miss Schultz drive. When asked by the court why he gave his driver\u2019s license to the police officer when his friend was driving, he answered he did so because she did not have a license. After further questions, the court asked the officer if he had a partner and Officer Burns answered in the affirmative.\nThe record reveals that the following took place after Officer Burns\u2019 answer:\nThe Court: \u201cAll right, let\u2019s bring him (the other officer) in. If he [the defendant] is lying, I\u2019m going to give him the limit.\u201d\nMr. Del Campo (defendant\u2019s lawyer): \u201cI have a witness.\u201d\nThe Court: \u201cYou can put on your witness. I can imagine what she is going to testify to \u2014 go ahead, put her on \u2014 she is going to say she was the driver, but I am warning you, counsel, and I am warning the defendant \u2014 I\u2019m going to continue this case and bring in the lieutenant who was there at the time.\u201d\nAnn Schultz then took the stand as a witness for the defense and testified that she was employed as a secretary. She said that after they left a restaurant, the defendant said he was not feeling well and asked her to drive, which she did. She further testified that she did stop with the idea of changing drivers, but that she continued to drive. When the officer stopped the car she pulled over to the side. The officer told her she was speeding and asked for her driver\u2019s license. When she replied that she had left it at home, the officer gave the defendant a ticket. She stated that she drove to the station where the defendant posted a bond.\nThe cause was then continued by the court for a month on its own motion for the purpose of bringing in the other officer. When the case was again called for trial, the defendant\u2019s counsel moved for a directed verdict. The court denied the motion and found the defendant guilty on the prior evidence.\nThe defendant maintains that the remarks of the trial court were prejudicial and clearly indicated the court\u2019s attitude of disbelief of the defendant and his witness. This the defendant urges is prejudicial error requiring reversal.\nThe State contends that a trial judge must have considerable latitude in conducting a trial and only where his conduct or remarks on evidence are \"such as would ordinarily create prejudice in the mind of a jury do they constitute reversible error. While we agree with this statement of the law we cannot accept the State\u2019s corollary which would have us hold that anything a judge says during a bench trial only makes explicit that which would otherwise be implicit in a finding adverse to the defendant and does not prejudice the defendant.\nThe State refers us to People v. Faginkrantz, 21 Ill 2d 75, 171 NE2d 5. There the trial judge, in a bench trial, indicated during the course of a defense witness\u2019s testimony that he did not believe the witness\u2019s testimony. In answering the defendant\u2019s contention that this was error, the Illinois Supreme Court stated:\nUpon such a trial [a bench trial] a judge\u2019s comments only make explicit what would otherwise be implicit in a finding adverse to the defendant. They thus become a matter of taste, in the absence of a showing of prejudice.\nPeople v. Faginkrantz, 21 Ill2d 75, 80, 171 NE2d 5, 8.\nThe second case cited by the State is People v. Clay, 27 Ill2d 27, 187 NE2d 719. After the finding was delivered in Clay the defendant there entered into a colloquy with the court and stated, \u201cIn other words, you don\u2019t believe the officer [an important State witness] would lie?\u201d to which the court replied, \u201cNo, sir, I don\u2019t.\u201d The defendant alleged error and the Illinois Supreme Court ruled \u201cThis statement by the court merely made explicit what was otherwise implicit in his finding of guilty and does not show prejudice.\u201d People v. Clay, 27 Ill2d 27, 33, 187 NE2d 719, 722.\nBoth of the cases cited by the State differ significantly from the case before us. In Clay the alleged prejudicial remarks were made after the trial judge delivered his verdict. Since it is the duty of the trial court to determine credibility when sitting without a jury, it comes as no surprise that at the end of a trial a judge has an opinion about the veracity of one of the witnesses. It can hardly be said at that point that the judge was prejudiced merely because he expressed that opinion.\nIn Faginkrantz the alleged prejudicial comments came at the conclusion of the State\u2019s cross-examination of a defense witness. The trial judge had heard the State\u2019s case and the greater portion of the testimony of the defense witness before he made his comment. The Supreme Court rejected defendant\u2019s allegation of prejudice stating that the comment came too close to the conclusion of the cross-examination of the defense witness to affect the testimony of the witness.\nIn the case at bar, however, the court\u2019s comments came before the judge had heard or had the opportunity to observe the defense witness testify. The remarks clearly informed the defense that the court believed the police officer and would disbelieve anything Miss Schultz would say. It is manifest, therefore, that the improper remarks could only have had a prejudicial effect on the defense witness\u2019s testimony. Of more concern, however, is the possibility that the improper comments, coming when they did, reflected a preconceived attitude on the part of the trial judge regarding the defendant\u2019s guilt. Since it is fundamental that a Magistrate resolve disputed questions of fact only after hearing all of the evidence with an open mind, we must reverse and remand this cause for a new trial. In view of our holding that those statements of the trial judge made immediately before Miss Schultz testified were prejudicial to the defendant, it is unnecessary for us to pass upon the other contentions of the defendant.\nFor the reasons set forth in this opinion the conviction and judgment is reversed and is remanded for a new trial.\nReversed and remanded.\nADESKO, P. J. and MURPHY, J., concur.",
        "type": "majority",
        "author": "MR. JUSTICE BURMAN"
      }
    ],
    "attorneys": [
      "Rafael A. Del Campo, of Chicago, for appellant.",
      "Edward V. Hanrahan, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and L. Michael Getty, Assistant State\u2019s Attorneys, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Albert A. Ojeda, Defendant-Appellant.\nGen. Nos. 53,433, 53,434.\nFirst District, First Division.\nJune 6, 1969.\nRafael A. Del Campo, of Chicago, for appellant.\nEdward V. Hanrahan, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and L. Michael Getty, Assistant State\u2019s Attorneys, of counsel), for appellee."
  },
  "file_name": "0480-01",
  "first_page_order": 486,
  "last_page_order": 491
}