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January 22, 1998


Appeal from the Circuit Court of Madison County. No. 94-CF-1832. Honorable Charles V. Romani, Jr., Judge, presiding.

The Honorable Justice Kuehn delivered the opinion of the court. Goldenhersh and Maag, JJ., concur.

The opinion of the court was delivered by: Kuehn

The Honorable 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, 85 Ill. Dec. 441 (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, 205 Ill. Dec. 345 (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, 119 Ill. Dec. 265 (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, 204 Ill. Dec. 107 (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, ...

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