Witnesses can't testify about Porter's driving, judge rules

07/09/2008 12:29 AM

07/09/2008 12:32 AM

Howard "Doug" Porter wants to testify in his own defense, but five friends and relatives won't be able to support the former Hickman pastor's claim that he is an inattentive driver, a judge said Tuesday.

The trial was not in session, but attorneys met with Judge Thomas Zeff to determine if the defense could present evidence about Porter's driving habits when testimony resumes today in Stanislaus County Superior Court.

Porter is suspected of embezzling $1.1 million from rancher Frank Craig, then staging two truck collisions to cover his tracks. Craig was crippled in 2002, when Porter's truck veered off a road and into a tree, and he drowned in 2004 when his truck, driven by Porter, landed in a canal.

Defense attorney Kirk McAllister called five potential witnesses to the stand so the judge could get the gist of their proposed testimony, and in the process he mentioned that they are needed to corroborate testimony the jury will hear from Porter.

The notion that Porter would testify in his own defense, and be subject to cross examination by two prosecutors from the district attorney's office, seemed to take the judge by surprise.

Zeff paused, then asked McAllister if he really planned to call his client to the witness stand.

"That is my belief," McAllister said.

Habit of turning to talk

Before the trial began, the judge said he would not allow testimony about careless driving, but he left the door open for testimony that shows Porter has a specific "habit and custom" that makes him a dangerous driver.

Five witnesses called by McAllister said Porter has a habit of turning to talk to passengers as he drives:

  • Friend John Hixenbaugh recalled a ride about a month before Craig drowned, when Porter swerved along a canal bank.
  • Sister-in-law Staci Dias recalled a ride in 2000 during which Porter turned to talk to her when she was sitting in the back seat.
  • Sister-in-law Annette Machado recalled a ride in 1989 when she rode in the bed of Porter's truck and he tried to cheer her up by turning to sing a silly song through a window in the back of the cab.
  • Friend Ken Nickles said he insisted on driving whenever he traveled with Porter because Porter would turn to talk to passengers.
  • Father-in-law Joe Dias said Porter gave him a fright in 1969, when Porter ran a tractor into a pole because he was turning to make funny faces at Dias, who was driving behind him; during a 1990 fishing trip, when Porter started looking for a fishing license as he drove; and during a 1998 hunting trip, when Porter lunged for a lighter that fell on the floor of his truck.
  • Most of the witnesses acknowledged uneventful trips with Porter as well. Deputy District Attorney John R. Mayne argued that their recollections do not show a reliable pattern. Zeff said the proposed testimony is out.

    During his opening statement in late May, McAllister told the jury that Porter and Craig ended up in the Ceres main canal, east of Swanson Road, because Craig distracted Porter by waving paperwork in his face.

    Whether Porter will relive that moment on the witness stand remains to be seen. When asked if he still plans to call Porter to the witness stand, the defense attorney declined to tip his hand.

    "See you tomorrow," McAllister said.

    Bee staff writer Susan Herendeen can be reached at sherendeen@modbee.com or 578-2338.

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