{ "id": 8499145, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELMER ECKERT, Defendant-Appellant", "name_abbreviation": "People v. Eckert", "decision_date": "1990-03-02", "docket_number": "No. 5\u201487\u20140371", "first_page": "667", "last_page": "675", "citations": [ { "type": "official", "cite": "194 Ill. App. 3d 667" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "223 N.E.2d 323", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "327" } ], "opinion_index": 0 }, { "cite": "78 Ill. App. 2d 375", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2569271 ], "year": 1984, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/78/0375-01" ] }, { "cite": "390 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "424" } ], "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 360", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5583699 ], "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0360-01" ] }, { "cite": "203 N.E.2d 434", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "436" } ], "opinion_index": 0 }, { "cite": "54 Ill. App. 2d 382", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5282552 ], "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/54/0382-01" ] }, { "cite": "513 N.E.2d 921", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "924" }, { "page": "926" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 858", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649527 ], "weight": 2, "pin_cites": [ { "page": "862" }, { "page": "864-65" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0858-01" ] }, { "cite": "449 N.E.2d 568", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 933", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3591032 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0933-01" ] }, { "cite": "461 N.E.2d 1380", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 972", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3521888 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0972-01" ] }, { "cite": "189 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "298" } ], "opinion_index": 0 }, { "cite": "27 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360433 ], "pin_cites": [ { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0398-01" ] }, { "cite": "494 N.E.2d 1275", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1277-78" } ], "opinion_index": 0 }, { "cite": "144 Ill. App. 3d 459", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3499655 ], "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0459-01" ] }, { "cite": "447 N.E.2d 973", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "977" } ], "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 761", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625545 ], "pin_cites": [ { "page": "767" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0761-01" ] }, { "cite": "111 N.E.2d 534", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "537" }, { "page": "537" } ], "opinion_index": 0 }, { "cite": "414 Ill. 445", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314057 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "450" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/ill/414/0445-01" ] } ], "analysis": { "cardinality": 862, "char_count": 17349, "ocr_confidence": 0.728, "pagerank": { "raw": 1.8545191560873745e-07, "percentile": 0.7239983875507799 }, "sha256": "da9d92eb23a18e4cba89b1066f36d9ff47b3ca9447de6eb7a977e70d3f22bdd2", "simhash": "1:cfb6a089fc01e4c4", "word_count": 3016 }, "last_updated": "2023-07-14T21:36:32.853539+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RARICK and GOLDENHERSH, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELMER ECKERT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE CHAPMAN\ndelivered the opinion of the court;\nAfter trial before a jury in the criminal court of St. Clair County, Elmer Eckert was found guilty of two counts of aggravated criminal sexual assault and sentenced to serve 14 years\u2019 imprisonment concurrently on each count.\nThe victim in this case was defendant\u2019s 13-year-old daughter. The victim testified at trial that the defendant first sexually assaulted her when she was in the fourth or fifth grade. She did not report this incident to her mother because her father warned her not to, and because she feared her mother would not believe her. It wasn\u2019t until the summer of 1985 that she told her mother that the defendant was abusing her. The child testified that in the summer of 1985 the defendant assaulted her twice in their home. The first incident involved the defendant putting his penis in the victim\u2019s mouth, feeling her breasts and putting his finger in the child\u2019s vagina. The second assault occurred when the defendant stuck his penis in the victim\u2019s mouth, moving it back and forth.\nDefense counsel on cross-examination of the witness asked questions to elicit whether the child believed her father was too much a disciplinarian, that he drank too much and fought with her mother to the point that the child felt life would be more peaceful had her father not been there. The State objected to such questions, and the following discourse ensued:\n\u201cQ. Okay. Now, did your father also in the summer of \u201985, did your father also accuse you and your brother of taking some money from him?\nA. Yes.\nQ. He accused you of taking approximately, what, a hundred dollars worth of change? If I\u2019m wrong, just tell me I\u2019m wrong.\nA. Huh-uh.\nQ. What did he accuse you of about the money?\nA. Just \u2014 .\nMS. FRANKE: Your Honor, I\u2019m going to object again, number one, it\u2019s beyond the scope of direct examination and it\u2019s irrelevant.\nTHE COURT: Beyond the scope of direct examination.\nMR. STORMENT: May I approach the bench? May we\u2014\nTHE COURT: (indicates negatively)\nMR. STORMENT: I can\u2019t approach the bench?\nTHE COURT: Come on, Paul, I\u2019ve tried cases too, ask the girl the questions.\nQ. (by Mr. Storment) During this course of the summer of \u201985, did he also, when he got mad, did he also say there wasn\u2019t going to be any Christmas?\nA. I can\u2019t remember.\nQ. You can\u2019t remember that? Did your mother say \u2014 did your mother indicate that she was going to buy you bicycles for Christmas?\nA. Yes.\nQ. And did he say that you weren\u2019t going to get any bicycles for Christmas?\nA. Yes.\nQ. Now, in the summer of \u201985, did you think in your mind-now, again, we need to know, we need for you to tell us the truth, and I need to ask you these questions. In the summer of \u201985, did you feel like that life would be more peaceful if your father wasn\u2019t there?\nMS. FRANKE: I object to that, Your Honor.\nMR. STORMENT: This is \u2014 Your Honor.\nTHE COURT: Objection will be sustained.\nMR. STORMENT: I\u2019ll have to make an offer of proof. Can we approach the bench for an offer of proof?\nTHE COURT: Proceed.\nMR. STORMENT: Your Honor, I\u2019d like to make an offer of proof. I need to make an offer of proof. I\u2019m trying to defend a person whose [sic] accused of a serious crime. I have to make an offer of proof at this time. If you are sustaining the objection, I need to make an offer of proof.\nTHE COURT: Paul, the direct examination took about thirty minutes, you\u2019ve taken an hour so far. Sit down. Go back to the cross examination properly.\nMR. STORMENT: May I please make an offer of proof?\nTHE COURT: No, you can\u2019t approach the bench. I don\u2019t want you up here.\nMR. STORMENT: Can I make an offer of proof?\nTHE COURT: Turned off my hearing aid, can\u2019t hear a word you are saying.\nMR. STORMENT: Then I\u2019d like to ask the question again. Do you think life would have been more peaceful had your father not been present in the home?\nMS. FRANKE: I object, Your Honor.\nTHE COURT: Why?\nMS. FRANKE: He asked the same question that has previously been sustained.\nMR. STORMENT: This is my defense to the case.\nTHE COURT: It\u2019s very easy to cross examine her. She has testified to certain things. You have a right to ask her about those things. You don\u2019t have the right to go back into the whole life span of the child. Get to the pertinent points.\nMR. STORMENT: I merely asked her one question. Well, can I ask her \u2014 did you want your father to leave the home?\nA. I don\u2019t know.\nQ. Is life more peaceful now that your father is not there?\nMS. FRANKE: I object to that question, Your Honor.\nMR. STORMENT: This is my entire defense, Your Honor.\nTHE COURT: To what? You object to what?\nMS. FRANKE: The question he asked, whether or not life is more peaceful in the home now without her father.\nTHE COURT: What does that have to do with the charge?\nMS. FRANKE: That\u2019s my objection, Your Honor.\nTHE COURT: All right. It will be sustained.\nMR. STORMENT: Your Honor, I think I have to protect the record and make an offer of proof. I think it\u2019s a matter of right for this defendant to make an offer of proof in this case.\nTHE COURT: Paul, I\u2019m deaf and getting deafer.\u201d\nDefense counsel continued with his cross-examination, after which the victim\u2019s 12-year-old brother took the stand. His testimony corroborated the incidents which his sister reported as having occurred in 1985, in that both times he witnessed his father sexually assaulting his sister.\nThe children\u2019s mother, Judy Eckert, testified as to what her children reported to her regarding their father\u2019s conduct. We will not go into detail herein as to her testimony as it is of little significance to the issues in this appeal.\nConrad Williams, the child abuse investigator for the Department of Children and Family Services, testified as to the procedures and findings of his investigation in this case. During cross-examination defense counsel asked whether many allegations of child sexual abuse are made by mothers estranged from their husbands and whether many of the cases the witness investigates are totally unfounded. The court sustained the State\u2019s objection to this line of questioning, and this exchange took place between defense counsel and the court:\n\u201cQ. And are a lot of \u2014 are a lot of mothers that are enstrained from \u2014 estranged from their husbands, are they making these?\nMS. FRANKE: Again I object to this being irrelevant.\nTHE COURT: Objection will be sustained.\nQ. Are a lot of the calls that you investigate, do you determine that they are totally unfounded?\nMS. FRANKE: Again that is irrelevant to this case.\nMR. STORMENT: Your Honor, how am I-[?]\nTHE COURT: Wait a minute, we had direct examination, your cross examination is bound by the boundaries of the direct examination. Now, follow it along that way and we will get along all right, otherwise we will be here all day. We won\u2019t accomplish anything, and I\u2019ll go to sleep. Ask the question the way you should.\nMR. STORMENT: Well, Your Honor, I\u2019m cross examining the witness on a serious felony case.\nTHE COURT: Don\u2019t make a speech to me, I can\u2019t hear you.\nMR. STORMENT: Why \u2014 very well then. Are many of the investigations that you find in the Cahokia area unfounded?\nMS. FRANKE: Again, I object, it\u2019s beyond the scope.\nTHE COURT: Let him answer.\nQ. (by Mr. Storment) Is that correct, sir?\nA. Some are unfounded.\nTHE COURT: All right. That\u2019s an answer enough.\nQ. Are many reports made by estranged wives against husbands unfounded?\nMS. FRANKE: Again, Your Honor \u2014 .\nTHE COURT: I\u2019ll sustain that objection.\nMR. STORMENT: Well, Your Honor, will you ask the witness to remain?\nTHE COURT: You are shooting goose shot hoping to hit something. No.\nMR. STORMENT: I\u2019m trying to defend my client.\nTHE COURT: I know what you are trying to do. You are trying to louse up the case, too. Get on with the case.\nMR. STORMENT: May I make an offer of proof on that?\nTHE COURT: You can make anything you want, I can\u2019t hear you.\nMR. STORMENT: Then I would approach \u2014 do I approach the Court Reporter to make my offer of proof?\nTHE COURT: If she wants to hear you. I\u2019m going to turn my hearing aid off.\nMS. FRANKE: I would ask that any offer of proof be taken outside the scope of the hearing \u2014 .\nTHE COURT: Debbie, go in there, sit in the hallway, take it, come back. Offer of proof is not for the jury to hear.\nMR. STORMENT: I think I should ask-.\nTHE COURT: An offer of proof you tell what the witness will state if you ask him the question. That\u2019s what an offer of proof is. Go ask it.\u201d\nAt that time counsel made his offer of proof outside the jury\u2019s and the trial judge\u2019s presence.\nThe State\u2019s final witness was Terrence McFarland, a police officer with Cahokia Village in St. Clair County. Officer McFarland testified that upon his request the defendant came down to the police station for questioning. The defendant waived his Miranda rights and freely gave a signed, written statement wherein he admitted that he engaged in oral sex with his daughter on two occasions. The defendant took the stand in his own behalf and denied the veracity of the written statement. He explained that although he admittedly made the statement, he did so only because he was tired of the aggravation and the questions, and he wanted to go home. Mr. Eckert testified that there were a lot of lies in the statement which was taken by Officer McFarland. He stated that he made the statement after promises had been made to him by the officer that he would not seek prosecution of the case if the defendant consented to making the statement.\nAt the conclusion of the evidence, but in the presence of the jury, the trial court and defense counsel had the following exchange:\n\u201cTHE COURT: That will take it up to five o\u2019clock. I have no intention of sitting here and keeping the jury so they don\u2019t go out to consider a case until after five o\u2019clock. This is Friday, they wouldn\u2019t be thinking about the case, thinking about home and their children. We will recess this case until 9:30 Tuesday morning.\nMR. STORMENT: Your Honor, I am scheduled to go to trial in Williamson County, have been, so \u2014 .\nTHE COURT: Guess what? You won\u2019t go.\nMR. STORMENT: That\u2019s the nicest words I\u2019ve heard. You\u2019ll call the Judge down there and inform him?\nTHE COURT: Tell that Judge anything you want. Tell him I don\u2019t care about him.\nMR. STORMENT: But I don\u2019t want to be in jail. You won\u2019t be in jail.\nTHE COURT: I won\u2019t be.\nMR. STORMENT: You\u2019ll square it with him?\nTHE COURT: Right.\nMR. STORMENT: Thank you.\nTHE COURT: Look at poor Paul, he\u2019ll be in jail.\nMR. STORMENT: I\u2019ll send my closing remarks from the jail.\u201d\nDefendant\u2019s first contention on appeal is that he was denied a fair trial where the trial judge repeatedly expressed hostility toward defense counsel and erroneously denied defense counsel the opportunity to present his case effectively. In all criminal prosecutions the accused is entitled to a fair and impartial trial by jury. (People v. Marino (1953), 414 Ill. 445, 450, 111 N.E.2d 534, 537; People v. Kelley (1983), 113 Ill. App. 3d 761, 767, 447 N.E.2d 973, 977.) The right of a defendant to an unbiased, open-minded trier of fact is so fundamental to our system of jurisprudence that it should not require either citation or explanation. It is rooted in the constitutional.guaranty of due process of law and entitles a defendant to a fair and impartial trial before a court which proceeds, not arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial. (People v. McDaniels (1986), 144 Ill. App. 3d 459, 462, 494 N.E.2d 1275, 1277-78.) Jurors are ever conscious of the trial judge\u2019s attitude. The judge\u2019s influence upon them is of great weight; thus, his slightest remark or intimation is received with deference and may prove controlling. In a criminal trial, a hostile attitude toward an accused, or his witnesses is very apt to influence the jury in arriving at its verdict. (People v. Marino, 414 Ill. 445, 451, 111 N.E.2d 534, 537.) The trial judge must exercise a high degree of care to avoid influencing the jurors in any way, to remain impartial, and to not display prejudice or favor toward any party. People v. Sprinkle (1963), 27 Ill. 2d 398, 401, 189 N.E.2d 295, 298.\nWe do not believe this to be a case of harmless error. (See People v. Merz (1984), 122 Ill. App. 3d 972, 461 N.E.2d 1380; People v. Heidorn (1983), 114 Ill. App. 3d 933, 449 N.E.2d 568.) The trial judge\u2019s remarks not only conveyed an impression to the jury that he felt defense counsel was not doing his job properly, but also that the defense was wasting the court\u2019s time.\nThe Code of Judicial Conduct prescribes that a judge should be patient, dignified, and courteous to litigants, jurors and witnesses, lawyers and others with whom he deals in his official capacity. (107 Ill. 2d R. 63A(3).) Likewise, the A.B.A. Project on Minimum Standards for Criminal Justice, Standard 6 \u2014 3.4, provides that \u201cwhen it becomes necessary during the trial for the judge to comment upon the conduct of witnesses, spectators, counsel or others, or upon the testimony, the judge should do so in a firm, dignified, and restrained manner, avoiding repartee, limiting comments and rulings to what is reasonably required for the underlying progress of the trial, and refraining from unnecessary disparagement of persons or issues.\u201d The record in the instant case, considered in its entirety, shows that the trial judge\u2019s conduct in the presence of the jury denied defendant a fair and impartial trial.\nCoupled with the judge\u2019s improper comments, improper restrictions were placed upon defense counsel\u2019s ability to cross-examine both the victim and the investigator in the case. The prosecution maintains that a trial court has substantial discretion to determine the manner and scope of cross-examination, and in this case there is no showing of a clear abuse of that discretion, resulting in manifest prejudice, to warrant a reversal. We believe the prosecution\u2019s position undermines the import of the sixth amendment.\nThe sixth amendment provides in pertinent part:\n\u201cIn all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him ***.\u201d (U.S. Const., amend. VI.)\nUnder the sixth and fourteenth amendments this right has been interpreted as a right to cross-examine a witness as to the witness\u2019 biases, interests, or motives to testify. (People v. Pressley, (1987), 160 Ill. App. 3d 858, 862, 513 N.E.2d 921, 924.) The trial judge\u2019s conduct effectively prevented defense counsel from cross-examining the complainant and the investigator, and in an antagonistic manner tried to prevent him from making an offer of proof to preserve the record. This conduct denied defendant his constitutional right to confront the witnesses against him.\nIt is a well-settled rule of law that it is error for the trial court to refuse to permit counsel to make an offer of proof. (In re Estate of Undziakiewicz (1964), 54 Ill. App. 2d 382, 385, 203 N.E.2d 434, 436.) In the instant case, the trial judge acted improperly in refusing to allow counsel the opportunity to make his offer of proof. Although counsel did later make his offer of proof, it was only after disparaging remarks to defense counsel were made in the presence of the jury by the trial judge. In addition, defense counsel made his offer of proof without the benefit of having the trial judge present. The court\u2019s insistence that it would not listen to any offer of proof made by the defense effectively prevented defense counsel from showing the trial judge the relevance of certain evidence so that the judge could make an informed decision as to admissibility. (People v. Pressley (1987), 160 Ill. App. 3d 858, 864-65, 513 N.E.2d 921, 926.) The purpose of an offer of proof is to indicate to the trial court, opposing counsel and a reviewing court the substance of the evidence expected to be offered. (Daehler v. Oggoian (1979), 72 Ill. App. 3d 360, 369, 390 N.E.2d 417, 424.) \u201c \u2018Just as the objection is the key to saving for review any error in admitting evidence, the offer of proof is the key to saving error in excluding evidence.\u2019 \u201d (Miller v. Chicago Transit Authority (1966), 78 Ill. App. 2d 375, 383, 223 N.E.2d 323, 327, quoting Professor Cleary in his Handbook of Illinois Evidence, \u00a77.7, now E. Cleary & M. Graham, Handbook of Illinois Evidence \u00a7103.7, at 17 (4th ed. 1984).) The judge\u2019s conduct herein was impermissible.\nSome of the instances of misconduct by the court, which we have noted, may not have been enough in isolation to rise to the level of reversible error. However, taken together the remarks had the cumulative effect of depriving defendant of a fair trial. Accordingly, we reverse and remand for a new trial.\nIn light of the foregoing determination, we need not address the issue raised by defendant that the trial court abused its discretion in sentencing defendant to 14 years\u2019 imprisonment.\nReversed and remanded.\nRARICK and GOLDENHERSH, JJ., concur.", "type": "majority", "author": "JUSTICE CHAPMAN" } ], "attorneys": [ "Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "John Baricevic, State\u2019s Attorney, of Belleville (Kenneth R. Boyle and Stephen E. Norris, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, and Anthony J. Peraica, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELMER ECKERT, Defendant-Appellant.\nFifth District\nNo. 5\u201487\u20140371\nOpinion filed March 2, 1990.\nDaniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nJohn Baricevic, State\u2019s Attorney, of Belleville (Kenneth R. Boyle and Stephen E. Norris, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, and Anthony J. Peraica, of counsel), for the People." }, "file_name": "0667-01", "first_page_order": 689, "last_page_order": 697 }