Appeal from the Circuit Court of Fayette County. No. 02-CF-40. Honorable S. Gene Schwarm, Judge, presiding.
The opinion of the court was delivered by: Justice Kuehn
This case was prosecuted by a seasoned attorney who knew full well what the law permits a prosecutor to do and what the law prohibits a prosecutor from doing. It was defended by a lawyer who apparently lacked that knowledge. In the face of an opponent unable to hold him in check, the prosecutor seemingly took advantage, unwilling to voluntarily adhere to the rules of evidence or the limitations upon his own conduct. As a result, we are presented a case where the State exploited trial counsel's weaknesses in a way that vanquished the promise of a fair trial designed to produce a just result.
Norman Ray McMillin (the defendant) stood trial on charges of driving under the influence of alcohol and driving on a revoked license. A Fayette County jury found him guilty as charged. He currently serves two 30-month prison terms.
The failure to file a posttrial motion is among the numerous mistakes made in the defense of this case. A number of legitimate issues lay forfeit because of it. However, only one issue is important to the result that we must reach. Because a review of these proceedings demonstrates professional errors that likely affected the trial's outcome, we reverse and remand for a new trial.
Here are the salient facts necessary to an understanding of our decision.
On March 2, 2002, the defendant and his partner, Tim Wehrle (Tim Wehrle or Wehrle), operated a logging business. A mutual friend, Allan Dothager, worked for them. March arrived like a lion that year. On the evening of March 2, 2002, the temperature dropped, the wind blustered, and Fayette County, Illinois, experienced the worst winter storm of the year.
A Fayette County sheriff's deputy found the defendant standing in the snowstorm that night. The deputy had tracked footprints in the snow from Tim Wehrle's disabled truck to where the defendant stood. The defendant was having a cell phone conversation when the deputy approached him. Wehrle's truck had been driven off the road, down an embankment, and onto a snowy plowed field. The truck was stuck in the mud and the snow.
The defendant spent the rest of that evening in jail, charged with driving under the influence of alcohol (DUI) and driving on a revoked license.
The defendant testified at his trial and gave his version of the evening's events. His testimony included the following claims.
When he, Tim Wehrle, and Allan Dothager finished work on the afternoon of March 2, 2002, Wehrle drove the threesome to the local Veterans of Foreign Wars (VFW) hall. They entered the hall, bellied up to the bar, and began drinking alcoholic beverages. The defendant laid claim to having consumed "three or four" beers and "a couple of mixed drinks." After a couple of hours of drinking, the defendant departed the hall and returned to Wehrle's truck. He climbed in and passed out on the front seat.
When the defendant awoke, he found himself in a snow-covered, plowed field. He was totally befuddled about how he had gotten there. The truck had been driven off the road and was stuck. The defendant exited the truck and walked up the hill as he reached for his cell phone to summon help. In the middle of a conversation with his brother, a Fayette County sheriff's deputy walked up to him. Deputy Larry Halleman wanted to discuss the disabled truck.
The defendant acknowledged that he first claimed that his brother had been the driver of the truck. He had meant to say that he assumed that the truck's owner, his business partner Tim Wehrle, had driven the truck to where it rested. He corrected his misstatement at the scene of Deputy Halleman's initial interrogation.
The defendant claimed that when Deputy Halleman pointed out that the defendant's footprints were the only prints leaving the truck, he started to doubt himself. He wondered whether he may have driven the truck and lost his memory of that fact due to an alcohol-induced blackout. According to the defendant, that is why he conceded to Deputy Halleman that it was possible that he had been the one who had driven the truck off the road.
The defendant further testified that, upon reflection, he realized that his footprints did not prove that he, rather than Tim Wehrle, had driven Wehrle's truck from the VFW to its snowy resting place. Tim Wehrle could have driven the truck into the field and walked away from it at a time when a lot less snow had fallen. The snow could easily have covered his tracks by the time Deputy Halleman arrived at the scene. Moreover, the defendant was certain that he never had Tim Wehrle's truck keys.
Thus, the defense was simple. The defendant denied being the driver of the truck. The vehicle's owner (Tim Wehrle) or Allan Dothager must have driven the truck into the field and left the scene while the defendant remained passed out and unaware of the circumstances. The defendant did not drive on a revoked license, and he did not drive while being alcohol-impaired, because he did not drive any vehicle that night.
Several events transpired during the trial that are pertinent to our decision.
Tim Wehrle and Allan Dothager did not testify at the trial. Neither the State nor the defendant produced either one of them. However, the prosecutor decided to introduce a hearsay version of what Tim Wehrle would have said, had he been called to testify about driving the truck. Thus, Wehrle's refutation of the defendant's testimony, and the core defense, was established without confrontation or cross-examination. Defense counsel did not object.
The following is the factual foundation for the hearsay.
Tim Wehrle arrived at the arrest scene before his truck was extricated from the field. (We are not told how Wehrle knew where to find his truck.) He asked Deputy Halleman whether he could have the truck. Deputy Halleman, in an accusatory tone, asked Wehrle whether he had knowingly allowed the defendant to drive the truck without a license and in an inebriated condition.
After laying this foundation, the prosecutor asked Deputy Halleman to relate to the defendant's jury what Wehrle had told him in response to the question. Deputy Halleman described to the jury what Tim Wehrle had told him: " '[The defendant] took the truck without permission. He's not supposed to be driving it.' "
Thus, the jury learned not only that Wehrle denied being the driver of the truck but also that Wehrle accused the defendant of having stolen the truck.
It was an excellent way for the State to have Wehrle counter the defendant's testimony. The State did not have to worry about a cross-examination that might have pointed out that it was Wehrle's truck, that Wehrle had been drinking heavily too, and that Wehrle would have been a DUI offender had he, in fact, driven the truck that night. Had Wehrle been the one to drive his truck into the muddy field, he would have wanted to exit the scene as soon as possible. Wehrle did not have to manage an explanation about how he had gotten home from the VFW that night, how he knew where to find his truck, or how the defendant could have obtained his truck keys without his permission.
Tim Wehrle's hearsay evidence proved particularly powerful in light of the following improper closing argument tendered by the prosecutor:
"No other person-no evidence was presented from anybody else's mouth saying, ['][H]ey, I drove the truck and I left and went to get help['] or something. You didn't hear that evidence from anybody. There's his boss and his other buddy who he works with[;] they're around[;] they didn't come in here and verify his story because they can't; they're not going to lie under oath." (Emphasis added.)
Deputy Halleman testified that he did not have a specific recollection of seeing the keys in the truck that evening. However, he concluded that the keys must have been in the truck because the tow operator was able to pull the truck out. The truck had to be turned on in order to disengage its gears for towing. Deputy Halleman's conclusion did not take Tim Wehrle's presence at the scene into account. Wehrle arrived before the truck was towed and could have given the tow operator the keys. This circumstance gives context to another improper closing argument. The prosecutor told the jury:
"Halleman also testified that Wehrle showed up and Wehrle didn't bring the keys with him[;] the keys were there, just like Halleman testified to."
There was nothing offered about Wehrle and the truck keys, not even hearsay. The State concedes as much on appeal. This concocted, and damaging, extension of Deputy Halleman's testimony was not challenged by defense counsel.
Deputy Halleman's police report of the incident was not in evidence. Its contents were never discussed during the trial. Yet defense counsel allowed the prosecutor to argue that it contained prior consistent statements that credited Deputy Halleman's testimony. There was no objection when the prosecutor argued:
"Larry Halleman's testimony is consistent today with what he put in his report back on March 2nd when this happened ***."
There was a stipulation entered into between the State and the defendant. It was agreed to in the stipulation that the State could prove that the defendant's driver's license had been revoked prior to March 2, 2002. The stipulation avoided any mention of why the license had been revoked. The stipulation would not convey the message that the defendant was a repeat offender with a penchant for driving drunk.
There was no indication that any of the defendant's considerable criminal history would be interjected into the trial. That is, not until the defendant's lawyer rose during ...