{ "id": 35431, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLINTON LEFLER, Defendant-Appellant", "name_abbreviation": "People v. Lefler", "decision_date": "1998-01-22", "docket_number": "No. 5\u201495\u20140331", "first_page": "305", "last_page": "313", "citations": [ { "type": "official", "cite": "294 Ill. App. 3d 305" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "514 U.S. 419", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1339057 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "434" }, { "page": "506" }, { "page": "1566" } ], "opinion_index": 0, "case_paths": [ "/us/514/0419-01" ] }, { "cite": "686 N.E.2d 379", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "382" }, { "page": "382" } ], "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 391", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725018 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "394" }, { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0391-01" ] }, { "cite": "663 N.E.2d 490", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1996, "pin_cites": [ { "page": "496" }, { "page": "496" }, { "page": "496" }, { "page": "496" }, { "page": "497" }, { "page": "498" } ], "opinion_index": 0 }, { "cite": "279 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75246 ], "weight": 7, "year": 1996, "pin_cites": [ { "page": "159" }, { "page": "158-59" }, { "page": "159" }, { "page": "159" }, { "page": "161" }, { "page": "161-62" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0152-01" ] }, { "cite": "641 N.E.2d 331", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "341" } ], "opinion_index": 0 }, { "cite": "161 Ill. 2d 119", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783177 ], "year": 1994, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0119-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "1130" }, { "page": "1130" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "186" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "643 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "662" }, { "page": "662" }, { "page": "662" } ], "opinion_index": 0 }, { "cite": "162 Ill. 2d 314", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477550 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "369-70" }, { "page": "370" }, { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0314-01" ] }, { "cite": "104 N.E. 804", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1914, "pin_cites": [ { "page": "823" } ], "opinion_index": 0 }, { "cite": "262 Ill. 411", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4750733 ], "year": 1914, "pin_cites": [ { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/ill/262/0411-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 15, "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": 986, "char_count": 17525, "ocr_confidence": 0.767, "pagerank": { "raw": 1.5279071694603777e-07, "percentile": 0.6705603299651833 }, "sha256": "7d6ef9a76129b24b80f4b6da553bfec00430d6119fb81cb24a2d4bd19df5df2b", "simhash": "1:1ab6d5d2298ea872", "word_count": 2745 }, "last_updated": "2023-07-14T15:05:51.326352+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLINTON LEFLER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KUEHN\ndelivered the opinion of the court:\nThis case features the mark of Cain and questions whether counsel was able.\nOn 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\u2019s 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\u2019s presence. They lay there, uncertain of what to do about the silent silhouette crouched motionless at their bedside.\nAfter 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.\nWhile 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.\nAfter defendant\u2019s 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\u2019s front door to a point a few blocks away. Cain tracked no farther than the area of defendant\u2019s arrest.\nDefendant stood trial. Stice and Hassen appeared and positively identified defendant as the intruder. Sabalo appeared and described how Cain tracked defendant\u2019s path to the point of defendant\u2019s arrest. A Madison County jury found defendant guilty of residential burglary. He was sentenced to prison for 12 years.\nOn appeal, defendant raises Cain. He argues that the admission into evidence of Cain\u2019s tracking exploits constitutes plain error. He insists that the admission of bloodhound evidence singularly compels reversal.\nAlternatively, he inveighs against his lawyer\u2019s 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).\nWe must address the question of whether the admission of dog-tracking evidence constitutes plain error that calls for reversal.\nIllinois holds to the proposition that \"testimony as to the trailing of either a man or animal by a blood-hound should never be admitted in evidence in any case.\u201d 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.\u201d People v. Cruz, 162 Ill. 2d 314, 369-70, 643 N.E.2d 636, 662 (1994).\nThe State initially concedes that \"bloodhound evidence\u201d is inadmissible. It suggests, however, that Cain\u2019s performance is not prohibited by the \"bloodhound evidence\u201d prohibition. The State tenders the novel approach that \"bloodhound evidence\u201d is limited to bloodhounds. It urges that the rule\u2019s evidentiary ban is not intended to apply to German shepherds, particularly highly educated German shepherds like Cain. Cain matriculated to and graduated from the St. Louis Police Department Canine Training Academy.\nThe 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 shepherds the breed of choice for such duty. Whether the trailing or tracking is performed by an academy-trained German shepherd or the less sophisticated bloodhound, the evidence\u2019s underlying fallibility remains the same. The bar against \"bloodhound evidence\u201d 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.\nDog-tracking evidence relies on an instinctive power incapable of human decipher. This is true whether the track utilizes a bloodhound\u2019s pure instincts or a German shepherd\u2019s instincts refined by academy training. An enigma remains after any breed\u2019s tracking performance. No one really knows, nor can they define, how or why a dog performs in any specific way on any specific occasion.\nIllinois is not willing to accept the reliability of the inference drawn from Cain\u2019s deeds in this case. The smell of defendant may have driven Cain\u2019s course. Then again, Cain may have been chasing an alley cat\u2019s scent. It was error to admit Sabalo\u2019s testimony about Cain\u2019s tracking exploits.\nThe authority prohibiting dog-tracking evidence was never raised or mentioned. The only effort to bar Sabalo\u2019s testimony was a challenge to Sabalo\u2019s 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\u2019s review. Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.\nThis 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\u2019s omissions forfeit the right to correct the error. 134 Ill. 2d R. 615.\nThe 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.\nThe 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\u2019s characteristics. Both witnesses had ample opportunity to observe who defendant was. They accurately described defendant\u2019s 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.\nThe core evidence in this case, two virtually unimpeached identifications of defendant, greatly reduces the possibility that Sabalo\u2019s testimony swayed the balance of thinking on a road to verdict. The core evidence\u2019s strength, corroborated by defendant\u2019s 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 of a fair trial. The plain error doctrine provides refuge from an issue\u2019s forfeiture only where the unpreserved error is substantial. See People v. Moore, 279 Ill. App. 3d 152, 663 N.E.2d 490 (1996).\nNext, we decide whether counsel\u2019s performance was constitutionally infirm.\nGenerally, 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\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 \"assistance of counsel\u201d calls for \"reasonably 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 \"assistance of counsel\u201d 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\u2019s 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.\nHere, the march to verdict engages a parade of unconstrained errors that defense counsel witnesses from the sidelines as a silent spectator. The prosecutor\u2019s 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.\nWe need not belabor all of the omissions raised in defendant\u2019s 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\u2019s 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\u2019s lack of effort to suppress the identifications.\nA brief passage from Sabalo\u2019s testimony, however, exemplifies an abstruse adversarial silence that marks these proceedings. As previously noted, proper objection would have prevented Sabalo\u2019s 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 a rather remarkable fashion. It exceeds anything admitted in those jurisdictions that deem dog-tracking evidence reliable. Sabalo critiques Cain\u2019s performance:\n\"Q. How did Cain do?\nA. Extremely well.\nQ. Why do you say that?\n* * *\nA. 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.\n* * *\nQ. Did the dog end up finding anybody or stopping?\nA. He didn\u2019t 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.\n* * *\nQ. Did the dog show any confusion or hesitation whatsoever?\nA. None whatsoever.\nQ. Okay. And what did that indicate to you?\nA. This was actually one of his best tracks he had done.\u201d (Emphasis added.)\nIt is difficult to discern the strategy underlying counsel\u2019s silent observation of Sabalo\u2019s translation of a German shepherd\u2019s look into the spoken word, particularly where that gaze spoke to Sabalo out of court and assured the jury of Cain\u2019s confidence in his own tracking ability. Further, counsel accepts without challenge Sabalo\u2019s ability to observe Cain\u2019s demeanor and from it weigh the comparative strength of the occasion\u2019s performance. Sabalo removes confusion and hesitation from Cain\u2019s manner and uses his perception of its absence to opine that Cain had a peak day.\nCounsel 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\u2019s performance here falls below objective reasonableness.\nTo succeed on a sixth amendment claim of ineffective assistance of counsel, defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, 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 trial\u2019s outcome. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.\nThe Strickland-Albanese prejudice prong precludes relief based solely upon an attorney\u2019s 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\u2019s outcome. Therefore, even when counsel\u2019s mistakes are egregious, we are required to examine them in the context of all the case\u2019s 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.\nWe stress that defendant\u2019s burden is not to show that a different verdict was likely in the absence of counsel\u2019s shortcomings. \"[The] touchstone *** is a 'reasonable probability\u2019 of a different result, and the adjective is important.\u201d (Emphasis omitted.) 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.\nOur 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.\nHaving 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\u2019s deficient performance is, at best, an extremely remote possibility. The likelihood of a different result is simply not a reasonable likelihood.\nAs previously noted, the core evidence in this case stood virtually unimpeached. In addition, the circumstances of defendant\u2019s arrest and immediate identification at the crime scene offer a compelling corroboration of the identification testimony\u2019s accuracy.\nThe State\u2019s argument notwithstanding, we recognize the harm defendant incurred by the unchallenged and improper admission of Cain\u2019s tracking exploits. Such evidence produced an inference that Cain tracked defendant\u2019s scent over his path of flight from the home to the point of arrest and, as such, allowed a conclusion that defendant\u2019s 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.\nThe other unchallenged errors, demonstrative of counsel\u2019s shortcomings, produced little cumulative harm to effect the trial\u2019s 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\u2019s substance from being heard, provided a proper method for its introduction was employed.\nIn 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\u2019s outcome. Where we cannot discern a reasonable probability that trial\u2019s outcome could change in the absence of counsel\u2019s performance, we cannot afford defendant the relief he seeks because of that performance.\nAccordingly, based upon the foregoing reasons, we affirm.\nAffirmed.\nGOLDENHERSH and MAAG, JJ., concur.", "type": "majority", "author": "JUSTICE KUEHN" } ], "attorneys": [ "Daniel M. Kirwin and Michelle A. Zalisko, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "William Haine, State\u2019s Attorney, of Edwardsville (Norbert J. Goetten, Stephen E. Norris, and Kendra S. Mitchell, 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. CLINTON LEFLER, Defendant-Appellant.\nFifth District\nNo. 5\u201495\u20140331\nOpinion filed January 22, 1998.\nDaniel M. Kirwin and Michelle A. Zalisko, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nWilliam Haine, State\u2019s Attorney, of Edwardsville (Norbert J. Goetten, Stephen E. Norris, and Kendra S. Mitchell, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0305-01", "first_page_order": 323, "last_page_order": 331 }