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This case was prosecuted by a seasoned attorney who knew full well what the lawpermits a prosecutor to do and what the law prohibits a prosecutor from doing. It wasdefended by a lawyer who apparently lacked that knowledge. In the face of an opponentunable to hold him in check, the prosecutor seemingly took advantage, unwilling tovoluntarily adhere to the rules of evidence or the limitations upon his own conduct. As aresult, we are presented a case where the State exploited trial counsel's weaknesses in a waythat 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 theinfluence of alcohol and driving on a revoked license. A Fayette County jury found himguilty as charged. He currently serves two 30-month prison terms.

The failure to file a posttrial motion is among the numerous mistakes made in thedefense of this case. A number of legitimate issues lay forfeit because of it. However, onlyone issue is important to the result that we must reach. Because a review of theseproceedings demonstrates professional errors that likely affected the trial's outcome, wereverse 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 orWehrle), 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 temperaturedropped, the wind blustered, and Fayette County, Illinois, experienced the worst winterstorm of the year.

A Fayette County sheriff's deputy found the defendant standing in the snowstorm thatnight. The deputy had tracked footprints in the snow from Tim Wehrle's disabled truck towhere the defendant stood. The defendant was having a cell phone conversation when thedeputy 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 theinfluence of alcohol (DUI) and driving on a revoked license.

The defendant testified at his trial and gave his version of the evening's events. Histestimony included the following claims.

When he, Tim Wehrle, and Allan Dothager finished work on the afternoon of March2, 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. Thedefendant laid claim to having consumed "three or four" beers and "a couple of mixeddrinks." After a couple of hours of drinking, the defendant departed the hall and returned toWehrle'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. Hewas totally befuddled about how he had gotten there. The truck had been driven off the roadand was stuck. The defendant exited the truck and walked up the hill as he reached for hiscell phone to summon help. In the middle of a conversation with his brother, a FayetteCounty sheriff's deputy walked up to him. Deputy Larry Halleman wanted to discuss thedisabled truck.

The defendant acknowledged that he first claimed that his brother had been the driverof the truck. He had meant to say that he assumed that the truck's owner, his business partnerTim Wehrle, had driven the truck to where it rested. He corrected his misstatement at thescene of Deputy Halleman's initial interrogation.

The defendant claimed that when Deputy Halleman pointed out that the defendant'sfootprints were the only prints leaving the truck, he started to doubt himself. He wonderedwhether 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 Hallemanthat 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 didnot prove that he, rather than Tim Wehrle, had driven Wehrle's truck from the VFW to itssnowy resting place. Tim Wehrle could have driven the truck into the field and walked awayfrom it at a time when a lot less snow had fallen. The snow could easily have covered histracks by the time Deputy Halleman arrived at the scene. Moreover, the defendant wascertain 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 thefield and left the scene while the defendant remained passed out and unaware of thecircumstances. The defendant did not drive on a revoked license, and he did not drive whilebeing 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 thedefendant produced either one of them. However, the prosecutor decided to introduce ahearsay version of what Tim Wehrle would have said, had he been called to testify aboutdriving the truck. Thus, Wehrle's refutation of the defendant's testimony, and the coredefense, was established without confrontation or cross-examination. Defense counsel didnot 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 Hallemanwhether he could have the truck. Deputy Halleman, in an accusatory tone, asked Wehrlewhether he had knowingly allowed the defendant to drive the truck without a license and inan inebriated condition.

After laying this foundation, the prosecutor asked Deputy Halleman to relate to thedefendant's jury what Wehrle had told him in response to the question. Deputy Hallemandescribed to the jury what Tim Wehrle had told him: " '[The defendant] took the truckwithout permission. He's not supposed to be driving it.' "

Thus, the jury learned not only that Wehrle denied being the driver of the truck butalso that Wehrle accused the defendant of having stolen the truck.

It was an excellent way for the State to have Wehrle counter the defendant'stestimony. The State did not have to worry about a cross-examination that might havepointed out that it was Wehrle's truck, that Wehrle had been drinking heavily too, and thatWehrle would have been a DUI offender had he, in fact, driven the truck that night. HadWehrle been the one to drive his truck into the muddy field, he would have wanted to exitthe scene as soon as possible. Wehrle did not have to manage an explanation about how hehad gotten home from the VFW that night, how he knew where to find his truck, or how thedefendant could have obtained his truck keys without his permission.

Tim Wehrle's hearsay evidence proved particularly powerful in light of the followingimproper 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'thear that evidence from anybody. There's his boss and his other buddy who he workswith[;] they're around[;] they didn't come in here and verify his story because theycan't; they're not going to lie under oath." (Emphasis added.)

Deputy Halleman testified that he did not have a specific recollection of seeing thekeys in the truck that evening. However, he concluded that the keys must have been in thetruck because the tow operator was able to pull the truck out. The truck had to be turned onin order to disengage its gears for towing. Deputy Halleman's conclusion did not take TimWehrle's presence at the scene into account. Wehrle arrived before the truck was towed andcould have given the tow operator the keys. This circumstance gives context to anotherimproper closing argument. The prosecutor told the jury:

"Halleman also testified that Wehrle showed up and Wehrle didn't bring the keys withhim[;] the keys were there, just like Halleman testified to."

There was nothing offered about Wehrle and the truck keys, not even hearsay. TheState concedes as much on appeal. This concocted, and damaging, extension of DeputyHalleman's testimony was not challenged by defense counsel.

Deputy Halleman's police report of the incident was not in evidence. Its contentswere never discussed during the trial. Yet defense counsel allowed the prosecutor to arguethat 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 backon March 2nd when this happened ***."

There was a stipulation entered into between the State and the defendant. It wasagreed to in the stipulation that the State could prove that the defendant's driver's license hadbeen revoked prior to March 2, 2002. The stipulation avoided any mention of why thelicense had been revoked. The stipulation would not convey the message that the defendantwas a repeat offender with a penchant for driving drunk.

There was no indication that any of the defendant's considerable criminal historywould be interjected into the trial. That is, not until the defendant's lawyer rose duringopening statements and announced to the jurors:

"We believe[,] when you get to the end of this case and after you reflect on theevidence[,] the evidence will show starting about 1990 Mr. McMillan [sic] did somestupid things. He got a DUI or two when he was a younger man. He never got outof the hole. Mr. Matoush, in a different county as prosecutor, handled his previousencounters 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 ona revoked license. We're not going to hide that from you. It's important you knowthat. ***

*** 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 ofbut it's something he can't run from, and I think it's relevant to this case as you hearthe evidence." (Emphasis added.)

Thus, defense counsel told the defendant's jury that two prior drunk-drivingconvictions, disobeying court orders that arose from those convictions, and a felonyconviction for driving after his license had been revoked, based upon his persistent drunkdriving, were not only relevant to his guilt or innocence here but also important for the jurorsto know about.

True to this declaration, defense counsel placed significant emphasis on eliciting thedefendant's prior criminal history. Counsel considered it relevant and important for the juryto also know about a 1994 aggravated battery conviction, as well as the two prior DUIconvictions and the felony driving-on-a-revoked-license conviction. Defense counsel alsowanted the jury to know about the punishments meted out for the defendant's sundry crimes. Here is an excerpt of defense counsel's somewhat remarkable questioning of his client.

"Q. [DANIEL GOGGIN (defense counsel):] Prior to the charges you're facingtoday you've had two prior DUIs; is that correct?

A. [THE DEFENDANT:] Yes, sir.

Q. The first one was when?

A. December '90.

Q. And your second one was?

A. In '91, I think.

Q. Then sometime later you ended up pleading guilty to an aggravated batterycharge?

A. Yes, sir.

Q. What year was that, do you recall?

A. It was around '94, I believe.

Q. As a part of your sentence on that you were to do so many weekends in thecounty jail?

A. Yeah, I had-if I recall, I think it was like 20 weekends, or something likethat.

Q. Then you had occasion in '96 to be charged[-]felony charge[-]driving onrevoked?

A. In '96? Yeah.

Q. What was your sentence on that '96 charge?

A. Three years [D]epartment of [C]orrections."

Thus, the jury learned about the defendant's life of crime, a past that defense counseldeclared relevant to the jury's decisionmaking and important to reaching a proper outcomeon the case. The defendant's jury was assisted in deciding whether the defendant drovedrunk, and drove on a revoked license, by knowing that the defendant had been caught andconvicted of driving drunk on two separate prior occasions. The jury was also helped in itsdecisionmaking by knowing that the defendant had no qualms about driving after his licensehad been revoked. It learned through defense counsel's questioning that the defendant haddone it before and had been sent to prison for it. Clearly, counsel aptly established therelevant, albeit highly prejudicial fact that this defendant had an absolute penchant forcommitting the crimes with which he was charged. Beyond that, jurors learned that theywere dealing with an individual who had been in and out of prisons and jails throughout thepreceding decade, due to a decade's disdain for the law.

This rather convincing proof of the defendant's propensity for committing the crimeswith which he was charged, in addition to a violent felony offense, was not good enough forthe prosecutor. Since defense counsel had opened the door to the defendant's criminalhistory, the prosecutor felt at liberty to explore the topic during cross-examination. Thefollowing is an excerpt of that examination. Defense counsel was silent throughout thequestioning.

"Q. [ROBERT MATOUSH (State's Attorney):] You told us about youraggravated battery conviction. You didn't tell us about an escape conviction, did you?

A. [THE DEFENDANT:] I wasn't asked.

Q. Well, did you-after you pled guilty to aggravated battery[,] were yousupposed to show up at the jail?

A. I had a bum lawyer named Huey Craig that said I was done with myweekends and I only had like a couple-about three weekends left and he said I wasdone, because they changed it from every weekend to every other weekend, and thenabout six months later down the road I get arrested for escape charge [sic] fromClinton County.

Q. And then you pled guilty to that charge, didn't you?

A. I didn't have much to stand on. They done had me guilty right that day inthe courtroom. Right there in Clinton County.

Q. So you got two DUIs and you've got an aggravated battery that [sic] you'vebeen convicted of an escape, and what else, felony driving while license revoked?

A. From the DUIs.

Q. When did you get the felony driving while license revoked?

A. It was in '96.

Q. You went to prison, right?

A. Yes, sir.

Q. How much prison did you do? You told us you did three years.

A. I did two years out of a three[-]year sentence.

Q. So you did two years, not three.

A. I got a three[-]year sentence and I ended up doing like ten months out of athree[-]year sentence, if I recall it right.

Q. Are you sure you got a three[-]year sentence?

A. I'm pretty sure, yeah.

Q. *** If your court papers say you only got two years, do you dispute that?

A. It's been a long time since I seen them court papers from back in '96.

Q. So it might have been two years instead of three years?

A. It might have been. I done ten months on a two-year sentence. I know itwas at least two to three years and I did ten months."

To the extent the amount of prison confinement that the defendant actually enduredbecause of committing a crime, identical to the crime charged, on an earlier occasion had anybearing on this case, the presentence report shows that the defendant had been sentenced toa 2