{ "id": 5458147, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NORMAN RAY McMILLIN, Defendant-Appellant", "name_abbreviation": "People v. McMillin", "decision_date": "2004-09-01", "docket_number": "No. 5-02-0794", "first_page": "336", "last_page": "348", "citations": [ { "type": "official", "cite": "352 Ill. App. 3d 336" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "663 N.E.2d 490", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "496" } ], "opinion_index": 0 }, { "cite": "279 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75246 ], "year": 1996, "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0152-01" ] }, { "cite": "158 L. Ed. 2d 177", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 5873383 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "541 U.S. 344", "category": "reporters:federal", "reporter": "U.S.", "year": 2004, "opinion_index": 0 }, { "cite": "689 N.E.2d 1209", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "1213" } ], "opinion_index": 0 }, { "cite": "294 Ill. App. 3d 305", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35431 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0305-01" ] }, { "cite": "686 N.E.2d 379", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "382" } ], "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 391", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725018 ], "year": 1997, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0391-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 12, "year": 1984, "pin_cites": [ { "page": "689" }, { "page": "694-95" }, { "page": "2065" }, { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "687" }, { "page": "693" }, { "page": "2064" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] } ], "analysis": { "cardinality": 1176, "char_count": 28746, "ocr_confidence": 0.742, "pagerank": { "raw": 6.470291726553117e-08, "percentile": 0.39870432600510686 }, "sha256": "824e57c36ef917c6db5b006f108d4911a04f6cd349fe971c4af1b8b515d9f6ea", "simhash": "1:ba82f33b2b1fc383", "word_count": 4745 }, "last_updated": "2023-07-14T19:57:06.765456+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MAAG and GOLDENHERSH, JJ\u201e concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NORMAN RAY McMILLIN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KUEHN\ndelivered the opinion of the court:\nThis 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\u2019s weaknesses in a way that vanquished the promise of a fair trial designed to produce a just result.\nNorman 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.\nThe 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\u2019s outcome, we reverse and remand for a new trial.\nHere are the salient facts necessary to an understanding of our decision.\nOn 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.\nA Fayette County sheriffs deputy found the defendant standing in the snowstorm that night. The deputy had tracked footprints in the snow from Tim Wehrle\u2019s disabled truck to where the defendant stood. The defendant was having a cell phone conversation when the deputy approached him. Wehrle\u2019s 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.\nThe defendant spent the rest of that evening in jail, charged with driving under the influence of alcohol (DUI) and driving on a revoked license.\nThe defendant testified at his trial and gave his version of the evening\u2019s events. His testimony included the following claims.\nWhen 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 \u201cthree or four\u201d beers and \u201ca couple of mixed drinks.\u201d After a couple of hours of drinking, the defendant departed the hall and returned to Wehrle\u2019s truck. He climbed in and passed out on the front seat.\nWhen 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 sheriffs deputy walked up to him. Deputy Larry Halleman wanted to discuss the disabled truck.\nThe 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\u2019s owner, his business partner Tim Wehrle, had driven the truck to where it rested. He corrected his misstatement at the scene of Deputy Halleman\u2019s initial interrogation.\nThe defendant claimed that when Deputy Halleman pointed out that the defendant\u2019s 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.\nThe defendant further testified that, upon reflection, he realized that his footprints did not prove that he, rather than Tim Wehrle, had driven Wehrle\u2019s 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\u2019s truck keys.\nThus, the defense was simple. The defendant denied being the driver of the truck. The vehicle\u2019s 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.\nSeveral events transpired during the trial that are pertinent to our decision.\nTim 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\u2019s refutation of the defendant\u2019s testimony, and the core defense, was established without confrontation or cross-examination. Defense counsel did not object.\nThe following is the factual foundation for the hearsay.\nTim 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.\nAfter laying this foundation, the prosecutor asked Deputy Halleman to relate to the defendant\u2019s jury what Wehrle had told him in response to the question. Deputy Halleman described to the jury what Tim Wehrle had told him: \u201c \u2018[The defendant] took the truck without permission. He\u2019s not supposed to be driving it.\u2019 \u201d\nThus, 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.\nIt was an excellent way for the State to have Wehrle counter the defendant\u2019s testimony. The State did not have to worry about a cross-examination that might have pointed out that it was Wehrle\u2019s 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.\nTim Wehrle\u2019s hearsay evidence proved particularly powerful in light of the following improper closing argument tendered by the prosecutor:\n\u201cNo other person \u2014 no evidence was presented from anybody else\u2019s mouth saying, [\u2018][H]ey, I drove the truck and I left and went to get help[\u2019] or something. You didn\u2019t hear that evidence from anybody. There\u2019s his boss and his other buddy who he works withf;] they\u2019re aroundf;] they didn\u2019t come in here and verify his story because they can\u2019t; they\u2019re not going to lie under oath.\u201d (Emphasis added.)\nDeputy 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\u2019s conclusion did not take Tim Wehrle\u2019s 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:\n\u201cHalleman also testified that Wehrle showed up and Wehrle didn\u2019t bring the keys with him[;] the keys were there, just like Halleman testified to.\u201d\nThere 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\u2019s testimony was not challenged by defense counsel.\nDeputy Halleman\u2019s 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\u2019s testimony. There was no objection when the prosecutor argued:\n\u201cLarry Halleman\u2019s testimony is consistent today with what he put in his report back on March 2nd when this happened ***.\u201d\nThere 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\u2019s driver\u2019s 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.\nThere was no indication that any of the defendant\u2019s considerable criminal history would be interjected into the trial. That is, not until the defendant\u2019s lawyer rose during opening statements and announced to the jurors:\n\u201cWe believe[,] when you get to the end of this case and after you reflect on the 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\u2019s a history of that and it goes on up. He\u2019s had a prior felony for driving on a revoked license. We\u2019re not going to hide that from you. It\u2019s important you know that. ***\n*** December \u201997, Mr. McMillan [sic] was sentenced to two years [D]epartment of [Corrections for driving revoked. It\u2019s not something he\u2019s proud of but it\u2019s something he can\u2019t run from, and I think it\u2019s relevant to this case as you hear the evidence.\u201d (Emphasis added.)\nThus, defense counsel told the defendant\u2019s 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.\nTrue to this declaration, defense counsel placed significant emphasis on eliciting the defendant\u2019s 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 defendant\u2019s sundry crimes. Here is an excerpt of defense counsel\u2019s somewhat remarkable questioning of his client.\n\u201cQ. [DANIEL GOGGIN (defense counsel):] Prior to the charges you\u2019re facing today you\u2019ve had two prior DUIs; is that correct?\nA. [THE DEFENDANT:] Yes, sir.\nQ. The first one was when?\nA. December \u201990.\nQ. And your second one was?\nA. In \u201991,1 think.\nQ. Then sometime later you ended up pleading guilty to an aggravated battery charge?\nA. Yes, sir.\nQ. What year was that, do you recall?\nA. It was around \u201994,1 believe.\nQ. As a part of your sentence on that you were to do so many weekends in the county jail?\nA. Yeah, I had \u2014 if I recall, I think it was like 20 weekends, or something like that.\nQ. Then you had occasion in \u201996 to be charged[ \u2014 ]felony charge [ \u2014 ]driving on revoked?\nA. In \u201996? Yeah.\nQ. What was your sentence on that \u201996 charge?\nA. Three years [Djepartment of [C]orrections.\u201d\nThus, the jury learned about the defendant\u2019s life of crime, a past that defense counsel declared relevant to the jury\u2019s decisionmaking and important to reaching a proper outcome on the case. The defendant\u2019s jury was assisted in deciding whether the def\u00e9ndant drove drunk, and drove on a revoked license, by knowing that the defendant had been caught and convicted of driving drunk on two separate prior occasions. The jury was also helped in its decisionmaking by knowing that the defendant had no qualms about driving after his license had been revoked. It learned through defense counsel\u2019s questioning that the defendant had done it before and had been sent to prison for it. Clearly, counsel aptly established the relevant, albeit highly prejudicial fact that this defendant had an absolute penchant for committing the crimes with which he was charged. Beyond that, jurors learned that they were dealing with an individual who had been in and out of prisons and jails throughout the preceding decade, due to a decade\u2019s disdain for the law.\nThis rather convincing proof of the defendant\u2019s propensity for committing the crimes with which he was charged, in addition to a violent felony offense, was not good enough for the prosecutor. Since defense counsel had opened the door to the defendant\u2019s criminal history, the prosecutor felt at liberty to explore the topic during cross-examination. The following is an excerpt of that examination. Defense counsel was silent throughout the questioning.\n\u201cQ. [ROBERT MATOUSH (State\u2019s Attorney):] You told us about your aggravated battery conviction. You didn\u2019t tell us about an escape conviction, did you?\nA. [THE DEFENDANT:] I wasn\u2019t asked.\nQ. Well, did you \u2014 after you pled guilty to aggravated battery[,] were you supposed to show up at the jail?\nA. I had a bum lawyer named Huey Craig that said I was done with my weekends and I only had like a couple \u2014 about three weekends left and he said I was done, because they changed it from every weekend to every other weekend, and then about six months later down the road I get arrested for escape charge [sic] from Clinton County.\nQ. And then you pled guilty to that charge, didn\u2019t you?\nA. I didn\u2019t have much to stand on. They done had me guilty right that day in the courtroom. Right there in Clinton County.\nQ. So you got two DUIs and you\u2019ve got an aggravated battery that [sic] you\u2019ve been convicted of an escape, and what else, felony driving while license revoked?\nA. From the DUIs.\nQ. When did you get the felony driving while license revoked?\nA. It was in \u201996.\nQ. You went to prison, right?\nA. Yes, sir.\nQ. How much prison did you do? You told us you did three years.\nA. I did two years out of a three Hyear sentence.\nQ. So you did two years, not three.\nA. I got a three Hyear sentence and I ended up doing like ten months out of a three[-]year sentence, if I recall it right.\nQ. Are you sure you got a three[-]year sentence?\nA. I\u2019m pretty sure, yeah.\nq *** y0ur court papers say you only got two years, do you dispute that?\nA. It\u2019s been a long time since I seen them court papers from back in \u201996.\nQ. So it might have been two years instead of three years?\nA. It might have been. I done ten months on a two-year sentence. I know it was at least two to three years and I did ten months.\u201d\nTo the extent the amount of prison confinement that the defendant actually endured because of committing a crime, identical to the crime charged, on an earlier occasion had any bearing on this case, the presentence report shows that the defendant had been sentenced to a 2V2-year term of imprisonment for aggravated battery, which had been served, in part, at the same time as a two-year sentence for driving on a revoked license.\nThe defendant was never charged with, or convicted of, the offense of escape. The actual charge and conviction was less aggravated. The defendant pled guilty to, and was sentenced for, the failure to appear.\nWe are asked to overturn the defendant\u2019s convictions because of trial counsel\u2019s incompetence. We reverse, and we remand for a new trial.\nGenerally, defense counsel are presumed to pursue sound trial strategies. Strickland v. Washington, 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694-95, 104 S. Ct. 2052, 2065 (1984). The presumptive soundness of their performance gives way to a finding of representation\u2019s deficiency only where no reasonably effective criminal defense attorney, confronting trial\u2019s circumstances, would engage in similar conduct. People v. Faulkner, 292 Ill. App. 3d 391, 394, 686 N.E.2d 379, 382 (1997). The constitution\u2019s guarantee of \u201cassistance of counsel\u201d calls for \u201creasonably effective assistance.\u201d Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.\nCriminal defense lawyers must assist defendants in a way that the constitution\u2019s guarantee to \u201cassistance of counsel\u201d contemplates. As we pointed out in People v. Lefler, 294 Ill. App. 3d 305, 689 N.E.2d 1209 (1998):\n\u201cThe constitution contemplates assistance that engages evidentiary rules to shield an accused from a decision based on unreliable evidence. [Citation.] It contemplates assistance that appreciates and understands legal principles applicable to the case. [Citation.] It contemplates assistance ready to provide adversarial check to a prosecutor\u2019s excessive endeavors. [Citation.] In short, the constitution contemplates more help from counsel than this defendant received.\u201d Lefler, 294 Ill. App. 3d at 310, 689 N.E.2d at 1213.\nThe constitution calls for better assistance than that which was provided here.\nWe cannot discern a strategy for allowing the State to introduce a hearsay statement from Tim Wehrle that refuted the defendant\u2019s core defense. Allowing Wehrle\u2019s hearsay claim that the defendant stole Wehrle\u2019s truck that evening had to stem from an inability to recognize hearsay evidence or from ignorance about the general rule against hearsay\u2019s admissibility. Either way, defense counsel allowed damaging hearsay, clearly improper in nature, to be admitted into evidence. The hearsay was testimonial in nature, in violation of the defendant\u2019s sixth amendment right to confrontation. See Crawford v. Washington, 541 U.S. 344, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). No reasonably effective defense attorney, confronting a similar improper effort to introduce damaging hearsay evidence, would allow for it.\nNor would reasonably effective criminal defense attorneys allow jurors to hear and consider their failure to call witnesses to verify their client\u2019s testimony. Those lawyers would not stand for a prosecutor telling jurors that witnesses would have to commit perjury to corroborate their client\u2019s testimony.\nReasonably effective criminal defense attorneys would halt prosecutorial efforts to make up evidence and to corroborate their key witnesses with prior consistent statements contained in police reports. They would object to cross-examination about their client\u2019s criminal past and would further object to the introduction of a criminal conviction that does not exist.\nWhich brings us to the strategic decision to elicit all the defendant\u2019s prior criminality with defense counsel\u2019s advance admonition to jurors that the defendant\u2019s prior crimes were \u201crelevant\u201d and \u201cimportant\u201d to the jury\u2019s decisionmaking.\nThe State argues:\n\u201cDefense counsel\u2019s case rested on the credibility of the defendant. In order to lend some credibility to the defendant\u2019s otherwise incredible defense and testimony, counsel chose to present evidence that whenever the defendant had been convicted before, he had always pled guilty. Defense counsel chose to bring out the peculiarities of the defendant\u2019s prior criminal history in order to bolster the defendant\u2019s credibility! ] and to arouse the passions of the jury against the prosecutor, hoping for jury nullification.\u201d\nThe State correctly deciphers defense counsel\u2019s strategy. Defense counsel argued to the jury:\n\u201cHe [(the prosecutor)] can make whoop-dee-doo about his past convictions, but look what Mr. McMillan [sic] has had to display to all of you[ \u2014 jthat he\u2019s got a decade of criminal activity being a DUI [sic]. He\u2019s very straight[ ]forward, put that out on the record, told you about a sentence of imprisonment for driving revoked that he had and they sought up to three years, if that meant anything. What\u2019s that history of Mr. McMillan\u2019s [sic] criminal past tell us? He\u2019s got a felony, that\u2019s fine. It also tells us up until these charges he has always pled guilty. He has always come before the bar and taken responsibility for what he\u2019s done. *** He\u2019s always not gone through the expense of a jury trial and pled guilty to the charges that he faced. But this time is different. He wasn\u2019t driving a vehicle.\u201d\nThe State also recognizes an additional component of this strategy. Defense counsel emphasized that the same prosecutor, the one trying the charges leveled here, successfully prosecuted all the defendant\u2019s other crimes. As the State correctly points out, defense counsel implied that this prosecution was a part of a decade-long vendetta that the prosecutor had waged against the defendant. However, this component of the strategy fell apart because the public record simply does not support it. Defense counsel apparently did not check public records to learn that this prosecutor was not the same prosecutor who had successfully prosecuted the defendant during his \u201cdecade of criminality.\u201d Had it been accurate that one man had prosecuted the defendant throughout the decade, it could hardly be said to have constituted a vendetta when the defendant admitted that he had committed all the crimes for which he had been prosecuted and had willingly pled guilty and accepted his punishment.\nIt is important to note that this is not a case where defense counsel\u2019s pretrial efforts to prevent prior convictions from being used for impeachment failed. Nor is it a case where the State was going to be permitted to prove other prior criminality for some purpose other than the accused\u2019s propensity for criminal behavior. In those instances, reasonably effective criminal defense lawyers might try to soften such evidence\u2019s impact by eliciting it themselves with the \u201cowning up\u201d spin that a guilty plea would allow.\nHere, in the absence of defense counsel\u2019s decision to be \u201cstraightforward\u201d and in the absence of his belief that the defendant\u2019s criminal past was \u201crelevant\u201d and \u201cimportant\u201d for the jurors to know, jurors would never have known that this was not the first time, not the second time, but the third time that the defendant faced drunk-driving charges. Jurors would not have known that the defendant was clearly capable of committing the crimes charged and had admittedly committed drunk driving two times before. In the absence of defense counsel\u2019s zeal to show jurors that when this defendant got caught committing a crime in the past, he had always owned up to it, jurors would never have known that the defendant went to prison for admittedly committing the same crime with which he was charged, in addition to battering someone in an aggravated way. Jurors would never have been told that the defendant repeatedly disobeyed court orders imposed for his criminality or that he had been convicted of escape, which was factually untrue.\nWhile we readily agree with the State\u2019s assessment of what defense counsel\u2019s strategy was, we do not agree with the conclusion that the strategy was sound. \u201cSound trial strategy is made of sterner stuff.\u201d People v. Moore, 279 Ill. App. 3d 152, 159, 663 N.E.2d 490, 496 (1996).\nWe think it decidedly unsound strategy to inform a jury that the accused is a perpetual outlaw who has engaged in a decade of criminal activity. We find it a decidedly defective tactic to disclose repeated and admitted law-breaking behavior identical to the charged conduct, in an effort to heighten the credibility of the current denials. There is nothing reasonable about such a strategy. Reasonably effective criminal defense lawyers would never pursue it.\nThe reason is simple. Reasonably effective advocates would worry about the downside from such a strategy, based upon the true impact that such evidence would have upon law-abiding people who sit as jurors. This kind of evidence bears a high degree of prejudice. It carries an overwhelming ability to dominate decisionmaking, swaying people to convict, regardless of what the actual evidence to support the charged conduct can establish. This is precisely why the State, despite its strong desire to present the kind of evidence elicited by defense counsel in this case, is generally barred from introducing it.\nHere, there is no question that jurors would correctly conclude that the defendant was the kind of human being who possessed little if any respect for the law.\nReasonably effective criminal defense attorneys would fear that jurors would conclude that the defendant harbored a penchant for driving drunk. They would fear that jurors would see how the defendant could not care less about driving without a license after his license had been revoked for drunk driving.\nCompetent counsel would be concerned that jurors would understand that because the defendant had driven on a revoked license before, he was infinitely more likely to have done it again. Those same jurors might also understand that the defendant faced considerably more punishment than the three years of imprisonment that counsel told them about, if the defendant was found guilty of repeating the same offense shortly after his release from prison. They could easily conclude that the defendant\u2019s past interity about admitting his guilt gave way to lying about his conduct in order to avoid the prospect of severe punishment.\nIn all likelihood, this is how jurors used the information defense counsel decided to give them. It is infinitely more likely that the jury reached these conclusions from evidence of the defendant\u2019s criminal past rather than the intended conclusion that the defendant possessed the integrity to plead guilty if he had committed the charges in question.\nWe find that defense counsel\u2019s performance was not objectively reasonable. The defendant did not receive reasonably effective assistance of counsel.\nTo succeed on a sixth amendment claim of ineffective assistance of counsel, the defendant must show that there is a reasonable probability that, but for counsel\u2019s professional shortcomings, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A reasonable probability means a probability sufficient to undermine confidence in the outcome of the case. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.\nUnder this test for constitutionally ineffective assistance of counsel, we are constrained from providing a defendant relief solely upon the basis of his attorney\u2019s level of performance. The test measures the performance against its potential effect on the outcome of the case. Therefore, even where counsel\u2019s mistakes are egregious, we are required to examine them in the context of all the evidence in the case. We must determine whether a different outcome was reasonably possible in the absence of counsel\u2019s errors.\nWe believe that there is a reasonable probability that, but for counsel\u2019s failings, the trial\u2019s outcome may have been different. Counsel\u2019s presentation of the defendant\u2019s \u201cdecade of criminality,\u201d the prosecution\u2019s cross-examination about that history, the distortion of critical evidence during closing argument, and Tim Wehrle\u2019s hearsay accusation are significant errors, the cumulative effect of which undermines confidence in the outcome of the case. We cannot say, given the presence of significant professional errors, that the defendant received a fair trial, understood as a trial resulting in a verdict worthy of confidence.\nBecause the defendant was deprived of his constitutional right to the effective assistance of counsel, we reverse and remand for a new trial.\nReversed; cause remanded.\nMAAG and GOLDENHERSH, JJ\u201e concur.", "type": "majority", "author": "JUSTICE KUEHN" } ], "attorneys": [ "Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Steve Friedel, State\u2019s Attorney, of Vandalia (Norbert J. Goetten, Stephen E. Norris, and Rebecca E. McCormick, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NORMAN RAY McMILLIN, Defendant-Appellant.\nFifth District\nNo. 5\u201402\u20140794\nOpinion filed September 1, 2004.\nDaniel M. Kirwan and Larry R. Wells, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nSteve Friedel, State\u2019s Attorney, of Vandalia (Norbert J. Goetten, Stephen E. Norris, and Rebecca E. McCormick, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0336-01", "first_page_order": 354, "last_page_order": 366 }