NO. 5-01-0081

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

							)	Circuit Court of

	Plaintiff-Appellee, 				)	Jackson County.  

							)

v.							)	No. 00-DT-122

							)

JOHN A. BROOKS, 				)	Honorable

							)	Kimberly Dahlen, 

	Defendant-Appellant.			)	Judge, presiding.  

___________________________________________________________________________

	JUSTICE CHAPMAN delivered the opinion of the court:

	After a second jury trial, John A. Brooks (defendant) was found guilty of driving

under the influence of alcohol (DUI).  Defendant was sentenced to serve 12 months of

probation, to pay a $600 fine, costs, and a $25-per-month probation fee, to attend DUI

counseling, and to pay $100 for the services of his appointed assistant public defender. 

Defendant now appeals from his conviction, claiming that he was denied a fair trial due to

the ineffective assistance of his appointed trial counsel.  The sole issue for review is whether

defendant was denied the effective assistance of counsel.  We affirm.

	I.  FACTS

	On March 26, 2000, defendant was arrested and charged with DUI in violation of

section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2) (West 2000)). 

The court appointed an assistant public defender to represent defendant.  Prior to the trial,

defendant's appointed counsel filed only one pretrial discovery motion.  On October 3, 2000,

the jury trial commenced.  After each of the parties had rested, the jurors deliberated for

several hours.  During its deliberations, on two separate occasions the jury indicated that it was unable to reach a unanimous verdict.  Ultimately, the trial was declared a mistrial due

to the jurors' continued inability to reach a unanimous verdict.  On December 5, 2000, the

case was recalled for a jury trial, and the same assistant public defender continued as

defendant's appointed counsel.  Prior to the December 5, 2000, jury trial, defendant's counsel

did not file a single pretrial motion.  

	Testimony from the prosecution's witnesses indicated that, at approximately 1 a.m. on

March 26, 2000, two Murphysboro police officers noticed defendant's vehicle stopped at a

green light.  After the traffic light turned yellow, defendant's vehicle turned left.  The two

officers (riding in the same squad car) followed defendant for about a mile.  The officers

observed defendant's vehicle swerve across the centerline, then swerve across the shoulder

line, and then swerve again across the centerline.  They then stopped defendant and

approached his vehicle.  There were three persons in the vehicle:  defendant, his wife, and

their six-year-old son.  The officer who approached defendant's side of the vehicle detected

an odor of alcohol.  The officer observed that defendant's eyes were red and watery and that

his speech was slurred.  Upon being asked for his driver's license, defendant appeared

confused and fumbled for his license.  Defendant told the police that he had consumed a few

drinks earlier that evening. 

	The officers gave defendant a battery of field sobriety tests:  (1) the horizontal-gaze-

nystagmus (HGN) test, (2) the one-leg-stand test, (3) the finger-count test, and (4) the walk-

and-turn test.  According to the officers, defendant failed the HGN test, the one-leg-stand

test, and the walk-and-turn test.  Defendant had difficulty with his balance and swayed from

side to side throughout the field sobriety testing.  Defendant, however, did successfully

perform the finger-count test.  After performing the field sobriety tests, defendant was asked

to submit to breath alcohol testing by way of a portable breath test (PBT) instrument, which

he refused.  Defendant was then arrested and transported to the police department.  He was given a citation for DUI and was asked to submit to a breathalyzer test at the police

department.  Defendant refused the test and was ultimately taken to the county jail.  Because

the officers believed that defendant's wife also may have been intoxicated–she had a strong

odor of alcohol, red, watery eyes, and slurred speech and had refused a PBT--– sshe and their

son were transported from the scene by another officer.  

	Trial testimony revealed that defendant was a 53-year-old commercial pilot at the time

of his arrest.  In 1992, defendant suffered a heart attack that required triple-bypass surgery. 

The surgery required the removal of veins in both of defendant's legs.  The removal of the

veins in defendant's legs was reported to cause poor circulation, swelling, numbness, and a

loss of feeling in the bottoms of his feet.  

	Prior to being stopped by police, defendant and his family were at a friend's house for

a barbeque.  They arrived at their friend's house at approximately 4 p.m. on March 25, 2000,

and did not leave until approximately 12:30 a.m. on March 26, 2000.  Defendant stated that

he had consumed approximately four or five mixed drinks from the time he arrived until

approximately 9:30 p.m., at which time he took a three-hour nap before leaving the house. 

Defendant was noted as having a "good buzz" before taking his nap at 9:30 p.m. but was not

thought to be intoxicated at the time he left the house.  

	At the trial, defendant admitted to crossing the centerline of the road, but he claimed

that he did so only in response to a car rapidly approaching behind him.  Defendant testified

that once the car behind him slowed, he realized that the vehicle was a police car and he

pulled over on the shoulder of the road.  Defendant denied stumbling after exiting his car. 

Defendant believed that he performed the walk-and-turn test as directed.  Also, defendant

testified that he performed poorly on the one-leg-stand test because of swelling, numbness,

and a lack of feeling in his feet.  Finally, defendant denied that he was asked to submit to a

breathalyzer test at the police station, and he claimed that it was not until he read the arresting officer's report that he became aware that he was reported to have denied such testing.  

	The jury found defendant guilty of DUI.  Defendant filed a timely appeal.

	II.  ANALYSIS

	Defendant now argues that he was denied a fair trial, as guaranteed by the sixth

amendment of the United States Constitution, because of the ineffective assistance of

counsel.  Specifically, defendant claims that his trial counsel was ineffective because (1) he

failed to object to the admission of testimony regarding defendant's refusal to submit to a

PBT, as well as testimony regarding its availability and accuracy, (2) he failed to object to

the admission of testimony regarding the HGN field sobriety test performed upon defendant

and on cross-examination he elicited damaging testimony regarding such testing, (3) he failed

to file a motion to quash defendant's arrest, on the basis of a lack of probable cause, and (4)

he failed to implement a trial strategy.  

	The effective assistance of counsel, as guaranteed by the sixth amendment right to

counsel, is measured by a test of whether the defendant received "reasonably effective

assistance."  Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052, 2064 (1984).  In order to establish an ineffective-assistance-of-counsel claim, a 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 694, 80 L. Ed. 2d 674, 104 S. Ct. at 2068.  "A reasonable probability is a probability sufficient to

undermine confidence in the outcome."  Strickland, 466 U.S. at 694, 80 L. Ed. 2d 674, 104 S. Ct. at 2068.  In making this showing, a defendant must show both (1) that his or her

counsel's performance was deficient and (2) that the deficient performance prejudiced his or

her defense.  Strickland v. Washington, 466 U.S. at 687, 80 L. Ed. 2d 674, 104 S. Ct. at 2064.  The failure to satisfy either the deficiency prong or the prejudice prong of this test precludes

a finding of ineffective assistance.  Strickland, 466 U.S. at 687, 80 L. Ed. 2d 674, 104 S. Ct. at 2064. 

	An inquiry into the performance of counsel requires an examination of whether the

assistance provided the defendant was reasonable, considering all the circumstances

surrounding the challenged conduct from counsel's perspective at the time.  Strickland, 466 U.S. at 688-89, 80 L. Ed. 2d 674, 104 S. Ct. at 2065.  The defendant must overcome the

strong presumption that counsel provided adequate assistance and exercised reasonable

professional judgment in making all significant decisions.  Strickland, 466 U.S. at 690, 80 L. Ed. 2d 674, 104 S. Ct. at 2066.  Establishing that counsel has committed professional error

does not warrant a reversal if the error had no effect on the judgment.  Strickland, 466 U.S. at 691, 80 L. Ed. 2d 674, 104 S. Ct. at 2066-67.

	We first address defendant's contention that his counsel's representation constituted

the ineffective assistance of counsel because his attorney failed to prevent the admission of

testimony regarding defendant's refusal to submit to a PBT, by either filing a pretrial motion

or making objections at the trial.  The prosecuting attorney elicited the following testimony

from one of the police officers, without objection from defense counsel:

		"Q.  And did you have any instruments with you that evening to measure breath

alcohol content?

		A.  We do have [PBT] instruments at our police department that we can utilize

during a traffic stop involving alcohol.

		Q.  And did you have one with you that evening?

		A.  Yes.

		Q.  What kind of a device is that, or how is it used?

		A.  A [PBT] is a smaller instrument that's used for recording a field level of

blood[-] alcohol content in the system.  It's not as scientifically accurate as the breath

instrument used at the police department that's stationary.  However, it will record if there is alcohol in the system or not.

		Q.  And what's the procedure for giving a test with that instrument?

		A.  We request [that] the driver take the test.  We produce the instrument.  We

produce a sterile[,] sealed tube that the driver puts to their [sic] lips and blows a breath through, and then the instrument reads any alcohol in the system.

		Q.  Did you ask the defendant to take a test with that instrument while you

were on the scene?

		A.  Yes, I did.

		Q.  Did he do that?

		A.  No, he did not.

		Q.  Did he give you any reason why he didn't want to do that?

		A.  Honestly, I don't recall his reason specifically."

Defendant notes that Illinois courts have held that PBT results are not admissible in the

State's case in chief to prove the defendant's intoxication.  People v. Rose, 268 Ill. App. 3d 174, 178, 643 N.E.2d 865, 868 (1994); People v. Halsey, 273 Ill. App. 3d 160, 652 N.E.2d 434 (1995).  Defendant argues that because the results of a PBT are inadmissible, testimony

regarding defendant's refusal to submit to the testing is equally inadmissible, as well as any

testimony concerning its availability and accuracy.  Furthermore, defendant argues that

counsel's failures in this regard constituted professional error that resulted in prejudice and

adversely affected the outcome of his trial.  

	Police officers may use PBT results to determine whether probable cause exists to

arrest a person for driving under the influence.  Rose, 268 Ill. App. 3d at 178, 643 N.E.2d at 868.  PBT results may be used as an investigative tool similar to field sobriety tests.  People v. Davis, 296 Ill. App. 3d 923, 928, 695 N.E.2d 1363, 1366 (1998); Rose, 268 Ill. App. 3d at 181, 643 N.E.2d at 870.  While other field sobriety tests involve human observations of a person's behavior, PBT instruments scientifically measure an aspect of a person's body

chemistry.  Rose, 268 Ill. App. 3d at 181, 643 N.E.2d at 870.  Because of this critical difference, the Department of Public Health has issued regulatory safeguards governing any

body chemistry testing.  Rose, 268 Ill. App. 3d at 181, 643 N.E.2d at 870.  Consequently, chemical test results are admissible only if the State can show that the instruments used to

conduct these tests complied with all the proper statutory and regulatory standards outlined

in section 11-501.2 of the Illinois Vehicle Code (625 ILCS 5/11-501.2 (West 2000)).  People v. Orth, 124 Ill. 2d 326, 340, 530 N.E.2d 210, 216-17 (1988).  PBT instruments (unlike breathalyzers) do not meet these stringent requirements for admissibility and, thus, neither

do the results.  Rose, 268 Ill. App. 3d at 181, 643 N.E.2d at 870.

	In the instant case, the State argues that Sergeant Lerge's testimony regarding

defendant's refusal to take the PBT was not elicited for the purpose of proving intoxication

but that, rather, the testimony was sought for the purpose of showing that defendant had a

guilty mind–i.e., that the results of the PBT would incriminate him.

	We find this to be a distinction without a difference as it pertains to the potential for

substantial prejudice.  Evidence of a defendant's refusal to take a test, the results of which

are inadmissible, is not relevant evidence of a defendant's innocence or guilt and could lead

a jury to draw unwarranted inferences that the defendant declined the test because he or she

was guilty.  The dangers of allowing testimony of a defendant's refusal to submit to scientific

testing that is otherwise inadmissible have been recognized by the appellate court in other

contexts.  

	In People v. Eickhoff, 129 Ill. App. 3d 99, 471 N.E.2d 1066 (1984), the court affirmed the circuit court's grant of a defendant's motion to suppress a request, and subsequent refusal,

to submit to polygraph testing.  The Eickhoff court stated, "Testimony that a defendant was offered a polygraph test, or that he refused one, interjects into the case inferences which bear directly on his guilt or innocence: either he failed the test *** or he refused to submit to

testing in fear that his guilt would be shown."  Eickhoff, 129 Ill. App. 3d at 103, 471 N.E.2d at 1069.  Accordingly, the Eickhoff court instructed, "That which may not be accomplished directly by evidence of polygraph test results may not be accomplished indirectly by references to whether a defendant sought, declined, or was offered a polygraph test." 

(Emphasis in original.)  Eickhoff, 129 Ill. App. 3d at 103, 471 N.E.2d at 1069.  In discussing the potential negative effect of allowing testimony of a defendant's refusal to submit to

polygraph testing, the court examined cases from other jurisdictions that had addressed the

issue.  The Eickhoff court quoted the insights of the Supreme Court of New Jersey:

	" 'In terms of degree of prejudice, the average jury, unfamiliar with the present

scientific uncertainty of the test, might very well be even more affected by proof of

a defendant's refusal to take the test than by the evidence of results adverse to him

coupled with proof of its scientific imperfection.  A refusal might be regarded as

indicating a consciousness of guilt.' "  Eickhoff, 129 Ill. App. 3d at 104, 471 N.E.2d at 1069 (quoting State v. Driver, 38 N.J. 255, 261, 183 A.2d 655, 658 (1962)).

Though Eickhoff and the cases discussed therein focus on the testimony of a defendant's refusal to submit to requested polygraph testing, we find many of the concerns highlighted

in those cases to be identical to those in the case sub judice.  

	Here, the PBT testimony elicited by the State in its case in chief provided the jury with

evidence that a PBT was available and offered to defendant, that the PBT could record the

blood- alcohol content of defendant, and that defendant refused to submit to such testing. 

However, there is no indication that the jury was familiar with the scientific uncertainty of

the PBT's ability to determine whether defendant's level of blood- alcohol content exceeded

the legal limit.  Accordingly, the jury might very well have been even more affected by the

proof of defendant's refusal to take the test than by the evidence of adverse PBT results coupled with proof of its scientific imperfection.  The fear is that the jury could infer

defendant's guilt from his refusal to submit to a test, even though the results of the test are

inadmissible to prove defendant's guilt.

	Accordingly, we hold that testimony regarding a defendant's refusal to submit to a

PBT–as well as any evidence of the test's accuracy or availability–is inadmissible in the

State's case in chief.  However, we do not conclude in this case that defendant was

substantially prejudiced by the admission of this testimony.

	There was credible testimony at the trial that defendant also refused the breathalyzer

test at the police station.  Breathalyzer machines do not inherently suffer from the same

scientific uncertainty that affects PBT machines.  The admissibility of breathalyzer test

results is well established, and therefore, to prove intoxication, the prosecution may utilize

both the test results and the refusal to take the test.  See Rose, 268 Ill. App. 3d 174, 643 N.E.2d 865; People v. Keith, 206 Ill. App. 3d 414, 564 N.E.2d 901 (1990).

	We believe, however, that in this case any perceptions of guilt the jury may have

inferred from defendant's refusal to take the breathalyzer test would have overshadowed any

similar perceptions resulting from testimony regarding his refusal to take the PBT.  Because

we cannot find that defendant has satisfied the prejudice prong of the Strickland test, we need not determine whether counsel's performance was constitutionally deficient.  See People v. Edwards, 195 Ill. 2d 142, 163, 745 N.E.2d 1212, 1223-24 (2001).

	Next, defendant claims that he was denied the effective assistance of counsel because

his attorney failed to object to the admission of testimony concerning HGN testing and

actually elicited damaging testimony on the issue.  However, the record reveals that counsel's

cross-examination of the arresting officer concerning the administration of HGN testing upon

defendant was a calculated decision to try to impeach the credibility of the officer and

therefore was clearly a part of counsel's strategy.  In our analysis of defendant's claims we need not illustrate every detail of counsel's conduct concerning the admission of the HGN

testimony on the direct examination and the cross-examination of the arresting officer; it is

sufficient only that we conclude that such conduct was the result of trial strategy.  "[N]either

mistakes in strategy nor the fact that another attorney with the benefit of hindsight would

have handled the case differently indicates the trial lawyer was incompetent."  People v. Vera, 277 Ill. App. 3d 130, 138, 660 N.E.2d 9, 16 (1995).  Defendant has failed to satisfy the deficiency prong of the Strickland test and has thereby failed to show that he was denied a fair trial.  

	Defendant also contends that counsel's failure to file a motion to quash his arrest, for

the lack of probable cause, amounted to the ineffective assistance of counsel.  To render

effective assistance, counsel need not file futile motions.  People v. Muhammad, 257 Ill. App. 3d 359, 367, 629 N.E.2d 106, 112 (1993).  Defendant concedes that there is a

possibility that the motion to quash would not have been granted.  The record, however,

establishes that the arresting officers clearly had probable cause to arrest defendant and that

a motion to quash would have indeed been denied.  Because the filing of a motion to quash

defendant's arrest would have been an exercise in futility, we cannot find that counsel's

performance was deficient.  Accordingly, defendant has again failed to satisfy the deficiency

prong of Strickland.  

	Lastly, defendant contends that he was denied the effective assistance of counsel

because of his attorney's failure to employ a trial strategy.  Although defendant initially

claims that his counsel did not employ a trial strategy, we find instead that his argument

questions the effectiveness of the strategy and tactics that counsel pursued.  Specifically,

defendant takes issue with counsel's decision to call certain witnesses, including the decision

that defendant testify.  We presume that defense attorneys pursue sound trial strategies. 

Strickland, 466 U.S. at 689, 80 L. Ed. 2d 674, 104 S. Ct. at 2065.  Trial strategies are unsound only when no reasonably effective criminal defense attorney, facing similar

circumstances, would pursue such strategies.  People v. Faulkner, 292 Ill. App. 3d 391, 394, 686 N.E.2d 379, 382 (1997).  Because we do not believe that defendant has overcome the

presumption that his counsel pursued a sound trial strategy in his defense and because we

have noted counsel's use of strategy in attempting to impeach the arresting officer's testimony

concerning HGN testing, we reject defendant's claims. 

	For the foregoing reasons, defendant's conviction is affirmed.

	Affirmed.  

	MAAG, P.J., and HOPKINS, J., concur.

	NO. 5-01-0081

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

							)	Circuit Court of

	Plaintiff-Appellee, 				)	Jackson County.  

							)

v.							)	No. 00-DT-122

							)

JOHN A. BROOKS, 				)	Honorable

							)	Kimberly Dahlen, 

	Defendant-Appellant.			)	Judge, presiding.  

___________________________________________________________________________

Opinion Filed:	October 7, 2002

___________________________________________________________________________

Justices:	Honorable Melissa A. Chapman, J.

	Honorable Gordon E. Maag, P.J., and

	Honorable Terrence J. Hopkins, J.,

	Concur

___________________________________________________________________________

Attorney	Paul Christenson, North 11th & Locust, P.O. Box 1011, 

for	Murphysboro, IL  62966

Appellant	

___________________________________________________________________________

Attorneys	Hon. Michael Wepsiec, Jackson County State's Attorney, Jackson 

for	County Courthouse, Murphysboro, IL  62966; Norbert J. Goetten, 

Appellee	Director, Stephen E. Norris, Deputy Director, Patrick D. Daley, 

	Staff Attorney, Office of the State's Attorneys Appellate Prosecutor,

	Route 15 East, P.O. Box 2249, Mt. Vernon, IL  62864

___________________________________________________________________________