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People v. McMillin9/1/2004
e 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 It was agreed to in the stipulation that the State could prove that the defendant's driver's license had been revoked prior to March 2, 2002. The stipulation avoided any mention of why the license *341 had been revoked.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 opening statements and announced to the jurors:
"We believe[,] when you get to the end of this case and after you reflect on the **15 ***504 evidence[,] the evidence will show starting about 1990 Mr. McMillan [sic] did some stupid things. He got a DUI or two when he was a younger man. He never got out of the hole. Mr. Matoush, in a different county as prosecutor, handled his previous encounters with DUIs and failing to abide by orders of the court relating to those, and there's a history of that and it goes on up. He's had a prior felony for driving on a revoked license. We're not going to hide that from you. It's important you know that. * * *
* * *
* * * December '97, Mr. McMillan [sic] was sentenced to two years [D]epartment of [C]orrections for driving revoked. It's not something he's proud of but it's something he can't run from, and I think it's relevant to this case as you hear the evidence." (Emphasis added.)
Thus, defense counsel told the defendant's jury that two prior drunk-driving convictions, disobeying court orders that arose from those convictions, and a felony conviction for driving after his license had been revoked, based upon his persistent drunk driving, were not only relevant to his guilt or innocence here but also important for the jurors to know about.
True to this declaration, defense counsel placed significant emphasis on eliciting the defendant's prior criminal history. Counsel considered it relevant and important for the jury to also know about a 1994 aggravated battery conviction, as well as the two prior DUI convictions and the felony driving-on-a-revoked-license conviction. Defense counsel also wanted the jury to know about the punishments meted out for the defenda
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