People v. Lefler

                               NO. 5-95-0331

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the
                                    )  Circuit Court of
     Plaintiff-Appellee,            )  Madison County.
                                    )
v.                                  )  No. 94-CF-1832
                                    )
CLINTON LEFLER,                     )  Honorable
                                    )  Charles V. Romani, Jr.,
     Defendant-Appellant.           )  Judge, presiding.
_________________________________________________________________

     JUSTICE KUEHN delivered the opinion of the court:
     This case features the mark of Cain and questions whether
counsel was able.
     On the night of November 5, 1994, someone broke into the home
of James Stice and Melissa Hassen, rifled through their belongings,
and stacked at the front door what he wanted to steal.  The
intruder rummaged through the house without disturbing anyone's
sleep, until he entered the bedroom.  When he did, Stice and Hassen
awoke.  They immediately realized that they were not alone, but
they feigned unawareness of the intruder's presence.  They laid
there, uncertain of what to do about the silent silhouette crouched
motionless at their bedside.
     After a lengthy and anxious pause, Hassen decided to get up. 
As she rose from the bed, the stranger bolted from the room.  Stice
immediately gave chase.  He chased the would-be thief out the door,
across the street, and into the neighboring darkness.  Whoever the
intruder was, he escaped.  
     While Stice chased the intruder, Hassen phoned the police, who
immediately responded.  Within moments of the break-in, police
conducted a search of the area and found defendant.  They detained
him and summoned Stice.  Stice positively identified defendant as
the man flushed from his bedroom moments earlier.  The defendant
was taken to jail.    
     After defendant's removal from the area, officer Michael
Sabalo and police dog Cain arrived at the scene of the crime.  Cain
tracked a path from the home's front door to a point a few blocks
away.  Cain tracked no further than the area of defendant's arrest. 
     Defendant stood trial.  Stice and Hassen appeared and
positively identified defendant as the intruder.  Sabalo appeared
and described how Cain tracked defendant's path to the point of
defendant's arrest.  A Madison County jury found defendant guilty
of residential burglary.  He was sentenced to prison for 12 years. 
     On appeal, defendant raises Cain.  He argues that the
admission into evidence of Cain's tracking exploits constitutes
plain error.  He insists that the admission of bloodhound evidence
singularly compels reversal.                                      
     Alternatively, he inveighs against his lawyer's performance. 
He argues that the legal help he received fell below that measure
of assistance that the constitution contemplates.  He urges that
incompetent lawyering led to an unreliable result.  See U.S.
Const., amend. VI; Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984).
     We must address the question of whether the admission of dog-
tracking evidence constitutes plain error that calls for reversal. 
     Illinois holds to the proposition that "testimony as to the
trailing of either a man or animal by a bloodhound should never be
admitted in evidence in any case."  People v. Pfanschmidt, 262 Ill. 411, 461, 104 N.E. 804, 823 (1914).  This evidentiary rule has
existed without qualification for nearly a century.  In fact, it
was reaffirmed shortly before this trial began, in a case of
considerable notoriety.  In reversing the conviction of Rolando
Cruz, our supreme court wrote, "We continue to adhere to the
principle that bloodhound evidence is inadmissible to establish any
factual proposition in a criminal proceeding in Illinois."  People
v. Cruz, 162 Ill. 2d 314, 369-70, 643 N.E.2d 636, 662 (1994).    
     The State initially concedes that "bloodhound evidence" is
inadmissible.  It suggests, however, that Cain's performance is not
prohibited by the "bloodhound evidence" prohibition.  The State
tenders the novel approach that "bloodhound evidence" is limited to
bloodhounds.  It urges that the rule's evidentiary ban is not
intended to apply to German Shepards, particularly highly educated
German Shepards like Cain.  Cain matriculated to and graduated from
the St. Louis Police Department Canine Training Academy.      
     The value of an academy-trained police dog is beyond dispute
and not in question here, nor is the intelligence and physical
prowess that make German Shepards the breed of choice for such
duty.  Whether the trailing or tracking is performed by an academy-
trained German Shepard or the less sophisticated bloodhound, the
evidence's underlying fallibility remains the same.  The bar
against "bloodhound evidence" addresses a class of evidence innate
in its unreliability and potential for prejudice.  Cruz, 162 Ill. 2d  at 370, 643 N.E.2d  at 662.
     Dog-tracking evidence relies on an instinctive power incapable
of human decipher.  This is true whether the track utilizes a
bloodhound's pure instincts or a German Shepard's instincts refined
by academy training.  An enigma remains after any breed's tracking
performance.  No one really knows, nor can they define, how or why
a dog performs in any specific way on any specific occasion.      
     Illinois is not willing to accept the reliability of the
inference drawn from Cain's deeds in this case.  The smell of
defendant may have driven Cain's course.  Then again, Cain may have
been chasing an alley cat's scent.  It was error to admit Sabalo's
testimony about Cain's tracking exploits. 
     The authority prohibiting dog-tracking evidence was never
raised or mentioned.  The only effort to bar Sabalo's testimony was
a challenge to Sabalo's credentials as an expert on the subject. 
When counsel fails to raise a timely proper objection, counsel
forfeits the right to later complain.  People v. Enoch, 122 Ill. 2d 176, 186 522 N.E.2d 1124, 1130 (1988).  When counsel further fails
to raise trial error in a posttrial motion, counsel forfeits a
right to the error's review.  Enoch, 122 Ill. 2d  at 186, 522 N.E.2d 
at 1130.
     This case involves the admission of a class of evidence deemed
too unreliable to prove any factual proposition in an Illinois
criminal case.  However, its admission is now reviewable only as
plain error.  If substantial rights are not affected, counsel's
omissions forfeit the right to correct the error.  134 Ill. 2d R.
615. 
     The plain error doctrine is appropriately invoked when the
evidence is closely balanced or when the error is so fundamental
that it, and it alone, denies a fair trial.  People v. Banks, 161 Ill. 2d 119, 143, 641 N.E.2d 331, 341 (1994).  Neither element
exists here.  
     The State presents the testimony of two credible eyewitnesses
who positively identify the defendant as the late-night intruder. 
Other evidence credits those identifications.  Defendant crouched
motionless, a few feet from both witnesses, for a lengthy period of
time.  During this period, various sources of light enabled close-
range observation of defendant's characteristics.  Both witnesses
had ample opportunity to observe who defendant was.  They
accurately described defendant's age, hair, and clothing before he
was discovered by the police.  Indeed, defendant neatly fit the
person for whom the police were told to search.  Defendant was
found in a residential neighborhood at 3:30 in the morning.  He did
not live in the neighborhood and offered no reason for being there.
It was only moments after Stice had chased a man of similar age,
sporting similar shoulder-length black hair and wearing similar
clothing, from his home.  Finally, when the police summoned Stice
just moments after his lengthy observation of the culprit, Stice
identified defendant.
     The core evidence in this case, two virtually unimpeached
identifications of defendant, greatly reduces the possibility that
Sabalo's testimony swayed the balance of thinking on a road to
verdict.  The core evidence's strength, corroborated by defendant's
inexplicable presence in the area and his immediate identification,
diminishes the importance of the dog-tracking evidence.  Its
admission, standing alone, fails to present so fundamental an error
as to deprive defendant a fair trial.  The plain error doctrine
provides refuge from an issue's forfeiture only where the
unpreserved error is substantial.  See People v. Moore, 279 Ill.
App. 3d 152, 663 N.E.2d 490 (1996).
     Next, we decide whether counsel's performance was
constitutionally infirm.           
     Generally, defense counsel are presumed to pursue sound trial
strategies.  Strickland, 466 U.S.  at 689, 80 L. Ed. 2d  at 694-95,
104 S. Ct.  at 2065.  The presumptive soundness of their performance
gives way to a finding of representation's deficiency only where no
reasonably effective criminal defense attorney, confronting trial's
circumstances, would engage in similar conduct.  People v.
Faulkner, 292 Ill. App. 3d 391, 394, 686 N.E.2d 379, 382 (1997). 
The constitution's guarantee of "assistance of counsel" calls for
"reasonably effective assistance."  Strickland, 466 U.S.  at 687, 80 L. Ed. 2d  at 693, 104 S. Ct.  at 2064.
     Criminal defense lawyers must assist defendants in a way that
the constitution's guarantee to "assistance of counsel"
contemplates.  The constitution contemplates assistance that
engages evidentiary rules to shield an accused from a decision
based on unreliable evidence.  Moore, 279 Ill. App. 3d at 159, 663 N.E.2d  at 496.  It contemplates assistance that appreciates and
understands legal principles applicable to the case.  Faulkner, 292
Ill. App. 3d at 394, 686 N.E.2d  at 382.  It contemplates assistance
ready to provide adversarial check to a prosecutor's excessive
endeavors.  Moore, 279 Ill. App. 3d at 158-59, 663 N.E.2d  at 496. 
In short, the constitution contemplates more help from counsel than
this defendant received.
     Here, the march to verdict engages a parade of unconstrained
error that defense counsel witnesses from the sidelines as a silent
spectator.  The prosecutor's opening statement employs argument,
his direct examination repeatedly shapes testimony with leading
questions, and on several occasions, he elicits improper hearsay
evidence.  The record is replete with unchecked violations of
established evidentiary rules. 
     We need not belabor all of the omissions raised in defendant's
brief.  With the exception of the claim that counsel failed to
pursue the suppression of the identification, the State proffers
little in the way of a defense of counsel's performance.  We agree
with the State that the show-up identification was proper police
procedure under the circumstances and no inference of deficiency
can be drawn from counsel's lack of effort to suppress the
identifications.     
     A brief passage from Sabalo's testimony, however, exemplifies
an abstruse adversarial silence that marks these proceedings.  As
previously noted, proper objection would have prevented Sabalo's
testimony in its entirety.  See Cruz, 162 Ill. 2d  at 370, 643 N.E.2d  at 662.  Beyond such failure, counsel allows the testimony
to ensue in rather remarkable fashion.  It exceeds anything
admitted in those jurisdictions that deem dog-tracking evidence
reliable.  Sabalo critiques Cain's performance:
               "Q.  How did Cain do?
               A.   Extremely well.
               Q.   Why do you say that?
                                   * * *
               A.   On this occasion he never raised his head up. 
          His head was completely down, his nose was probably one
          or two inches off the ground the whole time.  And he
          pulled extremely hard and continuously.
                                   * * *
               Q.   Did the dog end up finding anybody or stopping?
               A.   He didn't find a subject or a suspect.  He got
          to Manning, which is approximately a block and a half,
          two blocks away.  He went half way down Manning, and he
          just stopped.  And he is looking around at me like, okay. 
          Usually when he gets to an area where the track has
          ended, especially on a training track, there is a reward
          ***.  He is looking at me to find out, hey, there is
          nothing here, and I know I tracked something here.
                                   * * *
               Q.   Did the dog show any confusion or hesitation
          whatsoever?
               A.   None whatsoever.
               Q.   Okay. And what did that indicate to you?
               A.   This was actually one of his best tracks he had
          done."  (Emphasis added.)
     It is difficult to discern the strategy underlying counsel's
silent observation of Sabalo's translation of a German Shepard's
look into the spoken word, particularly where that gaze spoke to
Sabalo out of court and assured the jury of Cain's confidence in
his own tracking ability.  Further, counsel accepts without
challenge Sabalo's ability to observe Cain's demeanor and from it
weigh the comparative strength of the occasion's performance. 
Sabalo removes confusion and hesitation from Cain's manner and uses
his perception of its absence to opine that Cain had a peak day.  
     Counsel was apparently at a loss, unaware of what a prosecutor
can properly do or legitimately prove.  A reasonably effective
attorney would never have tolerated the admission of this evidence.
In spite of the strong presumption favoring professional
assistance, counsel's performance here falls below objective
reasonableness.   
     To succeed on a sixth amendment claim of ineffective
assistance of counsel, defendant must show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. 
Strickland, 466 U.S.  at 695, 80 L. Ed. 2d  at 698, 104 S. Ct.  at
2068-69.  A reasonable probability means a probability sufficient
to undermine confidence in trial's outcome.  Strickland, 466 U.S. 
at 687, 80 L. Ed. 2d  at 693, 104 S. Ct.  at 2064.                  
     The Strickland-Albanese prejudice prong precludes relief based
solely upon an attorney's substandard performance.  Moore, 279 Ill.
App. 3d at 159, 663 N.E.2d  at 496.  Our task is to measure an
inferior performance against its potential effect on trial's
outcome.  Therefore, even when counsel's mistakes are egregious, we
are required to examine them in the context of all the case's
evidence to determine whether they create a reasonable probability
of a different result.  Moore, 279 Ill. App. 3d at 159, 663 N.E.2d 
at 496.
     We stress that defendant's burden is not to show that a 
different verdict was likely in the absence of counsel's
shortcomings.  "The touchstone *** is a `reasonable probability' of
a different result, and the adjective is important."  Moore, 279
Ill. App. 3d at 161, 663 N.E.2d  at 497, quoting Kyles v. Whitley,
514 U.S. 419, 434, 131 L. Ed. 2d 490, 506, 115 S. Ct. 1555, 1566
(1995).  The question is not whether the defendant would more
likely than not have received a different result without the
professional errors of counsel but whether, with their presence, he
received a fair trial.  In this context, a fair trial is understood
as a trial resulting in a verdict worthy of confidence.  Moore, 279
Ill. App. 3d at 161-62, 663 N.E.2d  at 498.
     Our inquiry thus calls for more than a mechanical discount of
the evidence improperly admitted to determine if other unaffected
evidence sufficient to convict remains.  Rather, we must evaluate
all of the evidence presented at trial and decide whether it is
reasonable to conclude that a different result was plausible in the
absence of the deficient representation received.             
     Having examined the proceedings in their entirety, we are
satisfied that this verdict is reliable and that substandard
representation did not produce unjust results.  A different outcome
absent counsel's deficient performance is, at best, an extremely
remote possibility.  The likelihood of a different result is simply
not a reasonable likelihood.
     As previously noted, the core evidence in this case stood
virtually unimpeached.  In addition, the circumstances of
defendant's arrest and immediate identification at the crime scene
offer a compelling corroboration of the identification testimony's
accuracy.
     The State's argument notwithstanding, we recognize the harm
defendant incurred by the unchallenged and improper admission of
Cain's tracking exploits.  Such evidence produced an inference that
Cain tracked defendant's scent over his path of flight from the
home to the point of arrest and, as such, allowed a conclusion that
defendant's presence at the crime scene was accounted for,
independent of the two eyewitnesses and their identifications. 
However, the harm is dissipated by the strength of those
identifications and other evidence that corroborated them.
     The other unchallenged errors, demonstrative of counsel's
shortcomings, produced little cumulative harm to effect trial's
outcome.  Moreover, the evidence elicited by improper technique or
with inadequate foundation was not otherwise inadmissible.  A
timely objection would not necessarily have precluded the
evidence's substance from being heard, provided a proper method for
its introduction was employed.  
     In a perfect world, every defendant would receive the type of
lawyering that assists in his defense.  Such assistance would fall
within that wide range of professional expertise and skill that
comprises competence.  In our world, however, a defendant can
receive less assistance of counsel than the law actually
anticipates, yet find no remedy.  The sixth amendment right to
counsel vindicates a poor legal performance only where that
performance undermines confidence in trial's outcome.  Where we
cannot discern a reasonable probability that trial's outcome could
change in the absence of counsel's performance, we cannot afford
defendant the relief he seeks because of that performance.
     Accordingly, based upon the foregoing reasons, we affirm.

     Affirmed.

     GOLDENHERSH and MAAG, JJ., concur.