Opinion
Appeal No. 3-16-0426
08-22-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KARL R. LITWHILER, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois, Circuit No. 10-CF-441 Honorable Ted J. Hamer, Judge, Presiding. JUSTICE McDADE delivered the judgment of the court.
Justices Carter and Lytton concurred in the judgment.
ORDER
¶ 1 Held: The circuit court did not err in denying defendant's postconviction petition following an evidentiary hearing where defendant failed to make a substantial showing that he received ineffective assistance of counsel. ¶ 2 Defendant, Karl R. Litwhiler, appeals the denial of his postconviction petition following a third-stage evidentiary hearing. Specifically, defendant argues that he made a substantial showing that (1) trial counsel was ineffective for failing to call an expert witness to testify that the narcotics detection dog that alerted on defendant's vehicle was cued by his handler, and (2) trial and appellate counsel were ineffective for failing to argue that the traffic stop was unduly prolonged in violation of defendant's fourth amendment rights. We affirm.
¶ 3 FACTS
¶ 4 Defendant was charged with controlled substance trafficking (720 ILCS 570/401.1 (West 2010)), unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(11) (West 2010)), and unlawful possession of a controlled substance (720 ILCS 570/402(a)(11) (West 2010)) after police discovered approximately 30 pounds of psilocybin mushrooms in his vehicle. ¶ 5 Defendant filed a disclosure of expert witness, indicating that he intended to call Barry N. Cooper as an expert witness. The disclosure stated: "Mr. Cooper will testify regarding his knowledge, training and experience as a K-9 trainer and handler and that the K-9 in the present case false alerted and that the handler cued the K-9 before the alert." Defendant attached Cooper's curriculum vitae to the disclosure. ¶ 6 Defendant also filed a motion to suppress evidence and quash arrest arguing that police (1) conducted a traffic stop of defendant's vehicle without probable cause or reasonable suspicion, (2) searched defendant's vehicle without probable cause, a warrant, or consent; and (3) discovered a cannabis cigarette in defendant's shoe following the unlawful search of defendant's vehicle and unlawful arrest of defendant. ¶ 7 A hearing was held on defendant's motion to suppress. Defendant testified that on the day of the incident, he was driving a rental vehicle on Interstate 80 in Henry County. An officer stopped defendant's vehicle. Defendant stated that he had set his cruise control to travel at the rate of speed of 64 miles per hour so that he would stay below the speed limit. Defendant wanted to be cautious because he had psilocybin mushrooms in the vehicle. ¶ 8 Sergeant Floyd Blanks testified that on the day of the incident, he conducted a traffic stop on a vehicle defendant was driving. According to Blanks's radar, the vehicle was traveling at a rate of speed of approximately 72 miles per hour in a zone where the speed limit was 65 miles per hour. Blanks had performed two tests that day to ensure that his radar was working properly. Trooper Andrew Fratzke and another officer searched the vehicle following a canine alert and discovered psilocybin mushrooms in a large "toy box" in the back compartment of the vehicle. The officers found no other items of drug paraphernalia or residue inside the vehicle. Defendant was not inside his vehicle at the time of the dog sniff. The officers later discovered a cannabis cigarette in defendant's shoe after defendant was arrested. Blanks believed the cigarette was partially smoked because one end was burnt. Blanks did not know where the cigarette was smoked. ¶ 9 Fratzke testified that he was a canine handler. At the time of the incident, Fratzke worked with a canine named Viper. Fratzke had worked with Viper for approximately 14 years. Fratzke attended a 10-week training course with Viper. After the training, Fratzke was certified as a handler and Viper was certified in narcotics work. Viper was trained to detect the odor of marijuana, cocaine, crack cocaine, methamphetamines, and heroin. Viper alerted on the odor of a substance, not on the presence of the substance itself. Viper was trained to perform an aggressive alert by scratching. ¶ 10 On the day of the incident, Fratzke and Viper performed a free-air sniff of defendant's vehicle. On their first pass of the vehicle, Viper alerted by scratching. On the second pass, Viper did not want to leave the rear hatch of the vehicle and barked at Fratzke. Fratzke explained that as Viper got older, he had difficulty standing on his hind legs and would instead bark and want to stay in one place, "like he was turning into a passive alert." Viper was never officially trained to do a passive alert. Fratzke and other troopers eventually searched defendant's vehicle and found psilocybin mushrooms. The troopers later located cannabis on defendant's person. Fratzke did not smell the odor of cannabis in defendant's vehicle. ¶ 11 In the past, Viper had alerted and the officers had not found narcotics. Fratzke did not know if Viper alerted incorrectly on these occasions because there could have been residual odors from substances that were once present. Fratzke stated that he had read that a canine's sense of smell is approximately 150 times more sensitive than a human's sense of smell. Defense counsel questioned Fratzke regarding reports of Viper's past alerts. During closing argument, defense counsel argued that the reports revealed that in approximately 33% of the situations in which Viper alerted, no narcotics were found and there was no evidence that narcotics were ever present in the vehicle. ¶ 12 A video recording of the traffic stop was played and admitted into evidence. The video recording showed Blanks approaching defendant's vehicle and asking for defendant's driver's license, registration, and rental contract. Blanks told defendant he was going to give defendant a warning for speeding. Blanks looked inside the back of defendant's vehicle through the window. Blanks returned to his squad car, where he remained for approximately 2 minutes and 45 seconds. Blanks again approached defendant's vehicle and asked defendant to come to his squad car to verify his name and address. Blanks asked defendant where he rented the vehicle and where he was going. Fratzke arrived approximately 30 seconds later. Blanks told Fratzke he was going to write a warning for defendant. Fratzke said he would walk his dog around defendant's vehicle. Approximately 40 seconds later, Fratzke began performing the dog sniff. Fratzke repeatedly tugged on Viper's leash and pointed to the ground during the dog sniff. Viper scratched the rear of the vehicle on his first pass. On the second pass, Viper sat down at the rear of the vehicle and barked. Approximately six minutes elapsed from the time Blanks initially approached defendant's vehicle to the end of the dog sniff. ¶ 13 The court denied the motion to suppress. The circuit court found that Blanks had probable cause to stop defendant's vehicle based on Blanks's radar indicating that defendant's vehicle was traveling at a rate of speed of 72 miles per hour. The circuit court found that Viper was a reliable canine with regard to smelling the odor of illegal narcotics, including marijuana. The court noted that defendant had a marijuana cigarette in the vehicle approximately two to three minutes before the search. The circuit court concluded that the officers had probable cause to search defendant's vehicle based on Viper's alert. ¶ 14 The matter proceeded to a stipulated bench trial. The prosecutor summarized the evidence that the State would have presented at trial. Defendant stipulated to the State's evidence, but did not admit guilt or stipulate to the sufficiency of the evidence. The court found defendant guilty of all three counts based on the stipulated facts. The court sentenced defendant to 12 years' imprisonment on the charge of controlled substance trafficking (720 ILCS 570/401.1 (West 2010)). The court found that the other counts merged. ¶ 15 On direct appeal, we affirmed defendant's conviction. People v. Litwhiler, 2014 IL App (3d) 120431, ¶ 43. We held that the circuit court did not err in denying defendant's motion to suppress because the State presented sufficient evidence of Viper's reliability. Id. ¶ 40. We also held that defendant forfeited his argument that Fratzke cued Viper by failing to raise it in the circuit court. Id. ¶ 30. ¶ 16 Defendant filed a postconviction petition through counsel. The petition argued that defendant received ineffective assistance of trial and appellate counsel. Specifically, the petition argued that trial counsel provided ineffective assistance in failing to call Cooper or another expert witness to testify that Fratzke cued Viper to alert. The petition also argued that appellate counsel was ineffective for failing to argue that defendant received ineffective assistance of trial counsel. Defendant filed an amended postconviction petition, which included the additional argument that trial and appellate counsel were ineffective for failing to argue that the traffic stop was unduly prolonged to perform the dog sniff. The State filed a motion to dismiss, which was denied. The matter proceeded to an evidentiary hearing. ¶ 17 At the evidentiary hearing, defendant called his trial counsel, James Cosby, as a witness. Cosby was the public defender. Cosby stated that he made contact with Cooper, an expert witness, who would testify as to his knowledge, training, and experience as a canine handler. Cooper was of the opinion that Fratzke cued Viper, and Viper falsely alerted. Cooper informed Cosby of his opinion via e-mail. It was defendant's idea to hire Cooper. Defendant learned about Cooper from his cellmate, who had hired Cooper as an expert witness. Cosby "was exceptionally reluctant" to work with Cooper. Cooper's website was called "NeverGetBusted.com," and Cosby opined that "no reputable expert witness would have a website bearing that particular name." Cosby investigated Cooper's background and learned that Cooper had "had his own run-ins with the law." Cosby believed Cooper "clearly was pushing an agenda." For these reasons, Cosby opined that Cooper was not an expert he would have wanted to use. ¶ 18 Additionally, Cosby stated that Cooper stopped responding to Cosby's telephone calls and e-mails prior to the suppression hearing. Cooper had also stopped responding to defendant's cellmate, who had already paid him, and indicated that he would not come to court and testify for that individual. Cosby recalled having a conversation with Cooper via the telephone in which Cooper "basically ranted at [Cosby] for 10 to 15 minutes about this case in a very unstable fashion, using a large amount of profanity, indicating that [Cosby] was an agent for the State, that [they] were all colluding together." After that conversation, Cosby decided that he did not want to call Cooper as a witness. Based on his experience appearing in front of the trial judge, Cosby did not believe that the judge would find Cooper to be at all credible. ¶ 19 Cosby also opined that a cueing defense, which Cooper's testimony would have supported, would not have been successful. Cosby explained:
"Now, I never believed that this was a drug—a cueing case to begin with or that you could successfully present a cueing argument, because there's two problems with cueing. The first problem is, is it's a duel of experts, if you will. The trooper says I didn't do it, and the trooper's basically an expert, and then you bring in some hired gun to say he did do it. Okay?
But then you get into the idea of whether it was direct cueing or subconscious cueing, and I learned about the subconscious cueing from talking to Steven Nicely, which is, basically, you can do things to tell your dog that you're going to do something, and you're not actually verbally expressing it. Your actions aren't doing it. Your dogs are just familiar with you. They can pick up on the things that you're doing.
* * *
*** And the real problem with this is, even if you can somehow demonstrate your trooper's subconsciously cueing, you still have to prove that the trooper was doing it intentionally or willfully, he was trying to create a situation where his dog's going to alert, because a trooper who's got a trained K-9 can rely upon that K-9 so long as he believes that what the K-9's doing is right.
So, you're raising all these issues that all lead to the exact same place, which is, in all honesty, nowhere."¶ 20 Cosby was aware that there were other experts he could have contacted, including Steven Nicely. Cosby observed Nicely testify at a hearing on a motion to suppress in a different case. In that case, the court granted the motion to suppress on the basis that the police officer lacked probable cause to stop defendant's vehicle. Cosby recalled that the court had an unfavorable impression of Nicely's testimony, and "commented rather strongly" on it. Cosby was aware of another case where Nicely had testified at a suppression hearing, and the suppression motion was ultimately granted. Cosby was not personally involved in the case, but he had discussed the case with the judge who granted the motion. The judge told Cosby that he granted the suppression motion because the dog did not alert. ¶ 21 Cosby told defendant via the telephone that he decided not to hire Cooper. Cosby told defendant that Cooper had "basically disappeared." Cosby explained that Cooper had stopped responding to Cosby and the other individual who had hired him. Cosby and defendant discussed the options of proceeding without Cooper or requesting a continuance to try to retain Nicely as an expert witness. Cosby advised defendant that he did not believe that the cueing argument was an important issue, and he did not have much faith in canine experts. Defendant ultimately decided to proceed without an expert witness. ¶ 22 Cosby opined that the question of whether Blanks unduly prolonged the traffic stop to perform the free-air sniff of defendant's vehicle was not an issue because there was no expansion of the duration of the traffic stop. Cosby did not think it was unusual for Blanks to ask defendant to sit in his squad car and verify certain information. ¶ 23 Defendant testified that when Blanks stopped his vehicle, defendant gave Blanks his driver's license, insurance, and rental agreement. The name and address on defendant's driver's license matched his rental agreement. Blanks said he was going to write a warning ticket and returned to his squad car. A couple minutes later, Blanks returned to defendant's car and asked him to verify the spelling of his name and address. Blanks went back to his squad car. He returned to defendant's vehicle and asked defendant to sit in the squad car. When defendant entered the squad car, he observed Blanks writing a warning using the information from defendant's driver's license and registration. Defendant heard Blanks call for a canine expert over the radio. Defendant believed Blanks paused from writing the ticket at that time. Fratzke arrived with the dog several minutes later. Defendant saw Fratzke and the dog circle his vehicle twice. Defendant did not see the dog alert. The second time Fratzke walked around the vehicle, Fratzke "started doing these moves and then sort of hiding his body, possibly, to show—to hide the cueing, is what my opinion was, sort of stop, block, look back at the police, you know, camera so he could position himself." ¶ 24 Defendant testified that he was the first one to contact Cooper because "Cosby had no intentions of pursuing a suppression [motion]." Defendant stated that Cosby "saw nothing to do with the cueing," but defendant wanted Cosby to pursue the argument. Defendant met another inmate in jail, and they decided that it was best to get an expert witness who could testify in both cases on the same trip to Henry County. Defendant believed Cosby would call Cooper as an expert witness because defendant had insisted that he do so. Cosby never mentioned the possibility of calling Nicely as an expert. ¶ 25 Following the hearing, the court denied defendant's postconviction petition.
The video recording of the traffic stop showed that the toy box was a large cardboard box that a toy would be packaged in rather than a box used to store children's toys. --------
¶ 26 ANALYSIS
¶ 27 Defendant argues that the circuit court erred in denying his postconviction petition following an evidentiary hearing. Specifically, defendant argues that he established that: (1) trial counsel was ineffective for failing to call an expert to testify that Fratzke cued Viper, and (2) trial and appellate counsel were ineffective for failing to argue that the traffic stop was unduly prolonged. We address each argument in turn.
¶ 28 I. Failure to Call a Cueing Expert
¶ 29 Defendant argues that his postconviction petition should have been granted following the evidentiary hearing because he showed that his trial counsel was ineffective for failing to call an expert witness to testify at the suppression hearing that Fratzke cued Viper. Specifically, defendant contends that counsel should have called Cooper as an expert witness or, alternatively, should have called Nicely or another expert to testify as to cueing. We find that defendant failed to make a substantial showing that his trial counsel's performance was deficient or that defendant suffered prejudice from counsel's alleged deficiencies. ¶ 30 Throughout the third stage of postconviction proceedings, it is the defendant's burden to make a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). "When a petition is advanced to a third-stage, evidentiary hearing, where fact-finding and credibility determinations are involved, we will not reverse a circuit court's decision unless it is manifestly erroneous." Id. "A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented." Best v. Best, 223 Ill. 2d 342, 350 (2006). However, "[i]f no [fact-finding or credibility] determinations are necessary at the third stage, i.e., no new evidence is presented and the issues presented are pure questions of law, we will apply a de novo standard of review ***." Pendleton, 223 Ill. 2d at 473. ¶ 31 To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. People v. Henderson, 2013 IL 114040, ¶ 11; Strickland v. Washington, 466 U.S. 668, 687 (1984). ¶ 32 We find that Cosby's failure to call an expert witness to testify as to cueing did not constitute deficient performance because Cosby's testimony at the evidentiary hearing showed that his decision not to call an expert witness was a matter of sound trial strategy. Decisions concerning which witnesses to call and what evidence to present at trial "have long been viewed as matters of trial strategy [citation], which are generally immune from claims of ineffective assistance of counsel." People v. West, 187 Ill. 2d 418, 432 (1999). Even mistakes in trial strategy will not automatically "render representation constitutionally defective." People v. Perry, 224 Ill. 2d 312, 355 (2007). Rather, "[o]nly if counsel's trial strategy is so unsound that he entirely fails to conduct meaningful adversarial testing of the State's case will ineffective assistance of counsel be found." Id. at 355-56. ¶ 33 Cosby testified that he received an email from Cooper opining that Fratzke cued Viper to alert. However, Cosby did not call Cooper as an expert witness due to Cooper's erratic behavior. Cooper ranted at Cosby over the telephone "using a large amount of profanity" and accused Cosby of being "an agent for the State." Cooper later stopped responding to Cosby's telephone calls and e-mails and had stopped responding to another local defendant as well. Additionally, Cosby believed that the circuit court would not find Cooper to be a credible witness. Cosby noted that the name of Cooper's website was "NeverGetBusted.com." Cosby learned that Cooper "had his own run-ins with the law," and he believed Cooper "clearly was pushing an agenda." ¶ 34 Cosby acknowledged that he knew that calling another cueing expert, like Nicely, was an option. Cosby stated that Nicely had testified in two local suppression hearings in which the motions to suppress were ultimately granted. However, the suppression motions were granted for reasons other than Nicely's testimony, and Cosby recalled one local judge having an unfavorable impression of Nicely's testimony. Cosby testified that he presented the idea of hiring Nicely to defendant, but they decided not to hire him. Though defendant denied that Cosby ever spoke to him about hiring another expert, the circuit court's ruling implicitly indicates that the court accepted Cosby's testimony over defendant's. ¶ 35 In addition to failing to show that Cosby's performance was deficient, defendant failed to make a substantial showing that he was prejudiced by Cosby's failure to call an expert witness to testify as to cueing. "[W]here an ineffectiveness claim is based on counsel's failure to file a suppression motion, in order to establish prejudice under Strickland, the defendant must demonstrate that the unargued suppression motion is meritorious ***." Henderson, 2013 IL 114040, ¶ 15. A "meritorious" suppression motion is one that would have succeeded. Id. ¶ 12. ¶ 36 Here, defendant failed to present any evidence that an available expert would have testified at the suppression hearing that Viper was cued. Although Cooper initially expressed an opinion that Viper was cued, Cooper stopped responding to Cosby. Based on Cosby's testimony, it is unclear that Cooper was actually willing to testify at defendant's suppression hearing even if Cosby had wanted to hire him. At the evidentiary hearing, defendant failed to call any cueing expert who would have testified at his suppression hearing if called. Without evidence as to who would have testified as an expert and what the substance of the expert's testimony would have been, it is impossible for us to determine whether a motion to suppress based on cueing would have been meritorious.
¶ 37 II. Failure to Argue the Stop was Unduly Prolonged
¶ 38 Defendant argues that his trial and appellate counsel were ineffective for failing to argue that the traffic stop was unduly prolonged in violation of defendant's fourth amendment rights. Specifically, defendant argues that Blanks's request for defendant to come to Blanks's vehicle to verify certain information after defendant had given Blanks his license, registration, and rental agreement was "clearly a ruse to delay the issuance of the traffic ticket." We find that defendant failed to elicit any evidence at the evidentiary hearing to support his conclusory claim. ¶ 39 "The federal and state constitutions protect citizens from unreasonable searches and seizures." People v. Pulling, 2015 IL App (3d) 140516, ¶ 14 (citing U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6). A traffic stop constitutes a seizure. Id. A seizure pursuant to a traffic stop "can violate the fourth amendment if it is 'prolonged beyond the time reasonably required to complete' the purpose of the stop." Id. (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). An officer may not use a routine traffic stop as a subterfuge to obtain other evidence based on a mere hunch or unparticularized suspicion. Id. ¶ 40 Defendant relies on Rodriguez v. United States, 135 S. Ct. 1609 (2015) and People v. Pulling, 2015 IL App (3d) 140516, in support of his argument. In Rodriguez, a police officer issued the defendant a warning ticket for driving on the shoulder of the road. Rodriguez, 135 S. Ct. at 1612-13. The officer made the defendant wait for seven to eight minutes after the ticket was issued for officers to perform a dog sniff of the vehicle. Id. at 1613. The United States Supreme Court held that an officer could not conduct a dog sniff absent reasonable suspicion if it would add time to a traffic stop. Id. at 1612, 1616. The court reasoned:
"[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'—to address the traffic violation that
warranted the stop, [citation] and attend to related safety concerns, [citations]. Because addressing the infraction is the purpose of the stop, it may 'last no longer than is necessary to effectuate th[at] purpose.' [Citations.] Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed." Id. at 1615.¶ 41 The court held that an officer could perform "ordinary inquiries incident to [the traffic] stop," such as determining if there are outstanding warrants on the driver and checking the driver's license, registration, and insurance. Id. The court found that a dog sniff was "not an ordinary incident of a traffic stop" and was "not fairly characterized as part of the officer's traffic mission." Id. ¶ 42 In Pulling, Trooper Fratzke—the same trooper who conducted the dog sniff in the instant case—stopped a vehicle driven by Phillip Macon for speeding. Pulling, 2015 IL App (3d) 140516, ¶ 4. The Pulling defendant was a passenger in the vehicle. Id. Fratzke prepared citations for speeding and driving on a suspended license. Id. ¶¶ 4, 5. Fratzke testified that he had all the information he needed to prepare the citations approximately four minutes into the stop. Id. ¶¶ 5, 15. Fratzke said it usually took three to five minutes to write a speeding ticket, but that stop would take longer because he also had to prepare a citation for driving on a suspended license. Id. ¶ 5. After six minutes, Fratzke asked Macon to accompany him to the patrol car to complete paperwork. Id. ¶ 6. Fratzke spoke separately with Macon and defendant concerning where they were going. Id. ¶¶ 6, 7. Fratzke noted discrepancies in their accounts and stopped writing the citations to search the internet for information to verify Macon's story that his cousin had been killed. Id. Approximately 16 minutes into the stop, Fratzke walked his narcotics detection dog around the vehicle, and the dog alerted. Id. ¶ 9. Fratzke searched the vehicle and found crack cocaine in the trunk. Id. ¶ 43 We held that "Fratzke unlawfully prolonged the duration of the stop when he interrupted his traffic citation preparation to conduct a free-air sniff based on an unparticularized suspicion of criminal activity." Id. ¶ 15. We found that "Fratzke's deviation from the purpose of the stop to conduct a drug investigation was not supported by independent reasonable suspicion, and therefore, it unlawfully prolonged the duration of the stop." Id. ¶ 44 In the instant case, unlike in Rodriguez or Pulling, the dog sniff occurred while Blanks was still writing the warning. See Rodriguez, 135 S. Ct. at 1613; Pulling, 2015 IL App (3d) 140516, ¶ 15. Obtaining defendant's personal information to write the warning was clearly part of the mission of the traffic stop. See Rodriguez, 135 S. Ct. at 1615 ("[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'—to address the traffic violation that warranted the stop."). ¶ 45 It is unclear why Blanks asked defendant to sit in his car and verify information before Blanks completed the warning. Neither party elicited testimony from Blanks—either at the suppression hearing or postconviction evidentiary hearing—concerning why he asked defendant to come to his squad car to further verify information he already had in hand. On this record, we would be speculating if we were to accept defendant's argument that Blanks' request that defendant come to his squad car and verify his information was subterfuge to prolong the stop to allow time for the dog to arrive. Thus, based on the record before us, we find that defendant failed to show that the tasks tied to the warning ticket reasonably should have been completed at the time of the dog sniff. See Rodriguez, 135 S. Ct. at 1615. Accordingly, defendant has failed to make a substantial showing that his trial counsel was ineffective for failing to file a motion to suppress arguing that the traffic stop was unduly prolonged because defendant did not show that such a motion would have been meritorious. See Henderson, 2013 IL 114040, ¶ 15.
¶ 46 CONCLUSION
¶ 47 The judgment of the circuit court of Henry County is affirmed. ¶ 48 Affirmed.