People v. Robinson

delivered the judgment of the court, with opinion.

Chief Justice Thomas and Justices Fitzgerald, Kilbride, and Karmeier concurred in the judgment and opinion.

Justice Freeman dissented, with opinion, joined by Justice McMorrow.

OPINION

Defendant, Andre Robinson, was convicted after a jury trial in the circuit court of Cook County of driving with a blood-alcohol concentration of 0.08 or more (625 ILCS 5/11 — 501(a)(1) (West 2002)) and of driving while under the influence of alcohol (DUI) (625 ILCS 5/11— 501(a)(2) (West 2002)). He was sentenced to an 18-month period of court supervision and ordered to undergo drug testing during that period and to pay a $325 fine. His conviction was affirmed on appeal, although the fine imposed by the trial court was vacated and the cause remanded for a determination of the appropriate amount of a fine, if any. 349 Ill. App. 3d 622.

We granted defendant’s petition for leave to appeal pursuant to Supreme Court Rule 315 (177 Ill. 2d R. 315). In his petition, defendant raised a single issue — whether the trial court erred by denying his request for a Frye hearing (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) on the question of the admissibility of testimony regarding results of the horizontal gaze nystagmus (HGN) test. For the reasons that follow, we dismiss the appeal.

BACKGROUND

The appellate court opinion provides a complete summary of the evidence adduced at trial, including details of the traffic stop and field sobriety testing conducted by Officer Barber. In brief, the officer testified that after stopping a vehicle for improper lane usage, he observed that the driver, defendant, had bloodshot eyes, slurred speech, and a strong odor of alcohol on his breath. When defendant got out of the car, his balance was unsteady and he swayed from side to side. Defendant agreed to perform two field sobriety tests. The officer testified that defendant failed the one-leg stand test because he was unable to stand on one foot while holding the other foot off the ground for 30 seconds. The officer also testified that he administered the HGN test in accordance with the training he had been given. He observed an involuntary jerking of defendant’s eyeballs as the defendant attempted to track a moving object, the tip of the officer’s pen, while the officer moved it from left to right. As a result of this involuntary movement, known as nystagmus, the officer concluded that defendant was under the influence of alcohol. Defendant declined to perform two additional field sobriety tests, the walk-and-turn and finger-to-nose tests.

For purposes of the present appeal, only the procedural history of the case is relevant. Prior to trial, defendant filed a motion in limine seeking to bar admission of evidence regarding the results of the HGN test unless the State first established the reliability of the test. The motion argued that HGN tests are not generally accepted in the relevant scientific community and that, as a result, the State should be required to lay a proper foundation for admission of the HGN testimony in a Frye hearing.

The motion cited this court’s opinion in People v. Basler, 193 Ill. 2d 545 (2000), in which the majority concluded that the question of whether HGN test results are admissible in a prosecution for driving under the influence would not be reached because the State failed to preserve the issue for review on appeal. Nevertheless, three justices went on to state that HGN tests “are no longer ‘novel’ in any meaningful sense,” and, as a result, “the State should not be put to the burden of having to reestablish the test’s validity in every case.” Basler, 193 Ill. 2d at 551. The plurality also noted that:

“Although the State is no longer required to show that the HGN test satisfies the Frye standard before it may introduce the results of an HGN test into evidence, the validity of HGN tests and test results is not beyond challenge. If a defendant has evidence showing that HGN tests are scientifically unsound, then he may interpose the appropriate objection to the HGN test results and present his supporting evidence to the trial court. If the trial court is persuaded by the defendant’s evidence, then the court has the right to bar its admission. Note, however, that it is the defendant’s obligation to show that the test results are infirm. It is not the responsibility of the State to show that the tests and results are scientifically valid. Absent proof by the defense that the HGN test is unsound, the State need only show that the officer who gave the test was trained in the procedure and that the test was properly administered.” Basler, 193 Ill. 2d at 551-52.

Two justices specially concurred, stating that in light of the dismissal for failure to raise the HGN issue in the trial court, “the plurality’s additional discussion concerning the admissibility of HGN test results is entirely dicta without precedential value.” Basler, 193 Ill. 2d at 552 (Heiple, J., specially concurring, joined by Bilandie, J.).

The two remaining justices dissented, noting that even after joining the majority’s forfeiture analysis, the plurality nevertheless reached the merits of the issue. Basler, 193 Ill. 2d at 557 (McMorrow, J., dissenting, joined by Freeman, J.). They concluded by emphasizing that “the issue of whether HGN testing meets the Frye standard has not been resolved” by this court. Basler, 193 Ill. 2d at 559-60 (McMorrow, J., dissenting, joined by Freeman, J.).

Defendant’s memorandum in support of the motion in limine argued that the HGN test is “scientific in nature” and, thus, the State has the burden of establishing its general acceptance in the scientific community. Defendant argued further that in light of Basler, there is no controlling decision by the state’s highest court on this question and, further, that the appellate districts are split on the question of admissibility of HGN test results. In addition, defendant noted that this case arose in Cook County and that the First District of the Appellate Court has not yet addressed this issue. Therefore, defendant concluded, he was entitled to a Frye hearing on this question at which the State would have the burden of establishing that the HGN test is generally accepted in the relevant scientific community. The remainder of the memorandum cited various authorities for the proposition that the HGN test is unreliable for the purpose of determining whether a driver is under the influence of alcohol.

A hearing was held on this and another motion on February 21, 2002. In his motion in limine to exclude the results of the Breathalyzer test, defendant argued that the machine used to test his breath had a history of malfunction and that the results it produced were so unreliable that they should not have been admitted at trial. On appeal, he argued that even if the Breathalyzer results were properly admitted, the trial court erred by denying him the ability to present evidence of the machine malfunctions to the jury. At no time did he argue to the trial court or to the appellate court that the results of the HGN test were in any way related to the officer’s request that he submit to a Breathalyzer test.

As to the second motion under consideration at the February 21, 2002, hearing, the transcript reveals confusion regarding the nature of defendant’s motion. The court expressed concern with “whose time it is,” for speedy-trial purposes. Defense counsel responded that in the Frye hearing, the burden would be on the State. The court, however, stated that “[ijt’s the burden of the person making the motion to proceed forward.” Thus, the court stated, any delay due to a hearing on the motion in limine would be attributed to the defendant. Defense counsel explained that he “would rest on his motion” regarding the request for a Frye hearing and noted that he was not “setting up an evidentiary hearing where I would have the burden.” The following exchange then took place between the court and defense counsel:

“THE COURT: This is akin, a motion in limine is akin to a motion to suppress, except for the fact that on the motion to suppress you’re going on Constitutional grounds, on the motion in limine you’re going on evidentiary grounds.

It’s still, the burden is yours to present evidence to sustain your particular position.

COUNSEL: My concern, Judge, is the actual Frye hearing, itself, is not our burden.

THE COURT: Well, I’ll tell you what.

If you read the Supreme Court case on that issue, it seems to suggest that you have to make some sort of indication to the Court that there is an issue regarding Frye and, in fact, I should bring the case out because I looked at the words last night, I took the case last night and, you know, and then it goes to the State.

But I mean, you still have the responsibility to make the issue.

COUNSEL: My understanding is that the burden is shifted to the State once I object and request a Frye hearing, and that’s what I’ve done, through a memorandum of law and through a written motion given with two months notice to the State.”

The trial court cut off further discussion on the basis that “we’re getting beyond where we’re at” by “getting into the Frye issue right now.” The court announced that “this delay is attributable to the defendant.” Counsel again stated that the motion and supporting memorandum made a sufficient showing of entitlement to a Frye hearing.

The court then conflated the two pending defense motions by stating that, “You dealt with the issue of the [Bjreathalyzer at first because, obviously, that may negate this Frye hearing or this Frye issue in total.” Moments later, the court asked counsel “Do you want to withdraw the motion at this particular point in time for Fry el” and counsel agreed to withdraw the motion without prejudice.

The State commented that the refiling of the “Frye hearing motion in limine” would have to be done in sufficient time that it could be resolved prior to trial. The hearing ended with the setting of a trial date. The record provided to this court does not contain a subsequent written motion seeking a Frye hearing with regard to the HGN test.

On April 4, 2002, the trial began. Prior to selection of the jury, the trial court heard additional argument on the defense motion to exclude the results of the Breathalyzer test based on evidence that the particular machine used in this case had a history of malfunctions and was eventually taken out of service. The motion was denied.

The trial court then asked, “How about the second motion on the Horizontal Gaze Nystagmus Test?” Defense counsel responded, “We’ll waive it.”

On April 5, 2002, after voir dire concluded but before opening statements, the trial court considered several pretrial motions. At this time, defendant moved to bar the State’s witnesses from characterizing the results of the field sobriety tests as “passing or failing.” Counsel argued that the State’s witnesses should be allowed to testify to “what happened,” but that any characterization of defendant’s actions as passing or failing would be “unscientific.” Counsel stated that if the State wants to characterize a test result as passing or failing, it must first demonstrate that either the Daubert (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993)) or the Frye test is met. The motion was denied.

Defense counsel then requested a Frye hearing “during the trial” with regard to “the officer’s ability to perform and characterize the result of the HGN test.” The trial court indicated that Basler “controls the case” and denied the motion.

After the jury returned with verdicts of guilty on both counts, defendant filed a posttrial motion for a directed verdict of not guilty and for a new trial. In this motion, defendant asserted that “[t]he Court erred in denying Defendant’s motion requesting a Frye hearing with regards to the scientific validity of the Horizontal Gaze Nystagmus Test.”

A hearing was held on the posttrial motion on September 17, 2002. Defense counsel stated, “We asked for a Frye hearing on [the HGN test], we did not receive a Frye hearing. The motion in limine was denied.” The State acknowledged that there is “a split in the circuits on this issue of whether or not a Frye hearing is required prior to introducing this substantive evidence in a DUI trial” and that, in Basler, this court did not resolve the issue. Nevertheless, the State argued that in light of the Basler dicta, this “is not the sort of thing that is subject to a Frye hearing any more.” Defense counsel then offered argument that the HGN test is unreliable and that such test results should not have been admitted at trial. The trial court denied the posttrial motion and an appeal followed.

The appellate court concluded that the results of the HGN test were properly admitted absent a Frye hearing (349 Ill. App. 3d at 632), without mentioning that: (1) defendant’s motion for a Frye hearing was withdrawn and apparently never refiled, (2) when given the opportunity to argue the point on the first day of trial, the defendant “waived” the issue, and (3) when the trial court did finally make a ruling, it was only in response to a defense argument that the officer lacked the ability to perform and characterize the result of the HGN.

In his petition for leave to appeal, defendant asserted that review of his case by this court would resolve the question left open in Basler and resolve a conflict among the appellate districts as to whether a defendant is entitled to a Frye hearing to determine whether HGN test results are admissible as evidence of his driving under the influence. We granted leave to appeal to answer this question.

However, in his brief to this court, defendant does not address this question at all. Instead, he argues that: (1) HGN evidence does not meet the Frye standard, (2) this court should abandon Frye and adopt the Daubert standard in its place, and (3) the HGN evidence was not properly admitted in this case because the State did not prove that the officer properly administered the test. None of these three arguments were raised in defendant’s petition for leave to appeal. In fact, none of these arguments were among the 41 separate assertions of error contained in defendant’s posttrial motion.

ANALYSIS

The third issue raised in defendant’s brief was not raised in his posttrial motion, his appeal before the appellate court, or his petition for leave to appeal to this court. It is, therefore, forfeited. People v. Enoch, 122 Ill. 2d 176, 186 (1988).

The first and second issues are deserving of this court’s attention. Unfortunately, they are raised for the first time in defendant’s brief to this court and they, too, are forfeited. Although we note that the rule of forfeiture is “an admonition to the parties and not a limitation on the jurisdiction of this court” (People v. Normand, 215 Ill. 2d 539, 544 (2005)), we decline to address these issues on the merits for several reasons.

First, the procedural history described above is, at best, convoluted. It is unclear what issue was actually being argued to the trial court and what question the trial court thought it was answering. Under this circumstance, we would not be engaging in review, but rather writing on a clean slate. This is not our proper role.

Second, defendant has failed to argue the threshold question — whether he should have been given a Frye hearing — to this court. If he had argued this question and if this court had answered it in the affirmative, we might have then been persuaded to reach the next question — whether HGN testing meets the Frye standard— even though this question was not reached by the trial court. However, because we do not cross the threshold, it would be inappropriate for us to go further.

Finally, defendant was convicted of two counts. He has made no argument that the results of the HGN test led to his being asked to take a Breathalyzer test and the resulting conviction of driving with a blood-alcohol content of 0.08 or more (625 ILCS 5/11 — 501(a)(1) (West 2002)). Thus, even if we were to conclude that the results of the HGN test should not have been admitted, this error would have affected only his conviction for DUI (625 ILCS 5/11 — 501(a)(2) (West 2002)). As a result, his conviction and sentence would still stand.

CONCLUSION

Based on the record before us and defendant’s failure to argue the issue upon which we granted leave to appeal, we dismiss this appeal. The important questions that defendant unsuccessfully attempts to raise are best left for another day. This cause is remanded to the trial court for further proceedings in accordance with the judgment of the appellate court.

Dismissed.