People v. Burke
| Decision Date | 09 October 1964 |
| Docket Number | Gen. No. 64-8 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. William BURKE, Appellant. |
| Court | United States Appellate Court of Illinois |
Russell J. Goldman, Roald A. Jacobsen, Rockford, for appellant.
William R. Nash, State's Atty., Rockford, for appellee.
The defendant was convicted of the crime of incest and was sentenced to a term of from two to seven years in the penitentiary. The principal witness against him was his natural daughter, Diane, age sixteen. She testified that the defendant came home from work the afternoon of June 15, 1962, and took her into the bedroom of their house, where he had sexual intercourse with her.
The defendant's first assignment of error relates to the re-direct examination of Diane. On cross-examination, defendant's counsel had elicited from Diane the admission that she hated the defendant prior to this occurrence of June 15, 1962. On redirect examination, she was asked to state why she hated her father prior to June 15, 1962. Over strenuous objection, she was permitted to answer. She stated that the basis of this ill-feeling toward her father was that he had on previous occasions performed various unnatural sexual acts upon her. She described these acts briefly but quite graphically. The defendant moved to strike the testimony and also moved for a mis-trial, which motions were denied.
The defendant contends that this re-direct testimony of Diane went beyond the scope of the cross-examination and that it was irrelevant, highly inflammatory and prejudicial. We agree with the defendant that the testimony was prejudicial. There can be little doubt that the jury was strongly influenced by it. However, the fact that the evidence was prejudicial does not mean that it was erroneously admitted.
One question here is whether the defendant opened up the matter by his cross-examination. Generally, where the cross-examination of a witness develops that the witness is biased, the party offering the witness is entitled to rehabilitate him on redirect examination. If the reasons for the bias have a genuine tendency to rehabilitate the witness, they the reasons are clearly relevant and are a proper subject of redirect examination. Where, however, the reasons for the bias have no such tendency, and serve merely to introduce inflammatory matter into the case, the inquiry should not be permitted. Whether a particular inquiry along these lines is proper is largely within the discretion of the trial judge, who is in the best position to weigh the probable effect of the impeachment and attempted rehabilitation upon the jury. For a discussion of this problem, see Bracey v. United States, 79 U.S.App.D.C. 23, 142 F.2d 85, 87-90 (1944), cert. den. 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589, a case where an inquiry similar to the one involved here was held to be proper under the circumstances.
The cross-examination of Diane had established that she hated her father prior to the incident in question. This fact, standing alone and unexplained, could furnish the basis for a powerful argument that Diane could be motivated by this ill-feeling to invent the charge against her father. The State was clearly entitled to bring out the reason for her attitude toward her father, provided the reason had a legitimate tendency to lessen the impeaching effect of her admitted bias and was not a mere excuse to load the record with extraneous matter to the prejudice of the defendant. We think that Diane's explanation of her attitude toward her father does have a tendency to dissipate the adverse effect on her credibility which that attitude, standing unexplained, would undoubtedly have. At least we are not prepared to go so far as to say that the trial judge abused his discretion in allowing the testimony.
There is another reason why the action of the trial court was proper. The evidence of defendant's prior sexual relations with his daughter was independently admissible, as tending to substantiate the occurrence of the...
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