People v. Robinson

Docket No. 98800.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee v. ANDRE
D. ROBINSON, Appellant.

Opinion filed June 22, 2006.

JUSTICE GARMAN 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.
Justice Freeman dissented from the denial of rehearing, with
opinion.

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.

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 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 Bilandic, 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.).

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 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 “[i]t’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

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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 [B]reathalyzer 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 Frye?” and
counsel agreed to withdraw the motion without prejudice.

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 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

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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.

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 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.

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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.

JUSTICE FREEMAN, dissenting:
I strongly disagree with the court’s resolution of this appeal. My
colleagues dismiss the appeal because defendant failed “to argue the
issue upon which we granted leave to appeal.” Slip op. at 8. In so
doing, this court does a great disservice to both bench and bar by
leaving unresolved the question that has split our appellate court
since the filing of our decision in People v. Basler, 193 Ill. 2d 545
(2000). Accordingly, I dissent.
A jury convicted defendant of driving with a blood-alcohol
concentration of 0.08 or more (625 ILCS 5/11–501(a)(1) (West
2002)) and of driving under the influence of alcohol (625 ILCS
5/11–501(a)(2) (West 2002)). Prior to the trial, defendant filed a
motion in limine to exclude the results of the horizontal gaze
nystagmus (HGN) test that had been administered to him by the
arresting officer. In the motion, defendant argued that HGN tests
have not been generally accepted in the scientific field and that,
absent a foundation laid by the State that the HGN test comported
with the requirements of Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923), the results should be barred. Although defendant at one
point “waived” this motion, defendant, during trial, once again
requested a Frye hearing. The circuit court substantively denied the
renewed motion, ruling that this court’s decision in People v. Basler,
193 Ill. 2d 545 (2000), controlled the issue.
On appeal, the appellate court held, inter alia, that the trial judge
properly denied defendant’s motion to bar the results of the HGN test
absent a Frye hearing. 349 Ill. App. 3d 622. In so holding, the court
stated that the HGN test is generally accepted in the scientific
community and thereby no longer necessitates a Frye hearing prior
to admission into evidence. 349 Ill. App. 3d at 631.

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 Defendant subsequently filed a petition for leave to appeal (PLA)
in this court, in which he sought this court’s clarification of whether
a trial court must first hold a Frye hearing before allowing the
admission of HGN test results into evidence. Defendant stated in his
PLA that “the instant case presents an opportunity for this Court to
squarely resolve the question of whether the HGN test meets the Frye
standard, a question that was left open in Basler.”
In its opinion, the court states that the question we granted leave
to appeal to answer in this case was “whether HGN test results are
admissible as evidence of his driving under the influence.” Slip op.
at 7. The court believes that defendant does not address this question
“at all” (slip op. at 7) and “has failed to argue the threshold
question–whether he should have been given a Frye hearing.” Slip
op. at 8. In my view, the court is mistaken in so holding. While I
acknowledge that defendant’s brief is inartfully constructed and does
not always clearly draw the connection between his argument that
HGN evidence does not meet the Frye standard and his claim that he
should have been granted a Frye hearing, if this court were to dismiss
every appeal in which parties’ arguments were inartfully presented,
we would have to dismiss many appeals. See People v. Jung, 192 Ill.
2d 1, 13 (2000) (Freeman, J., specially concurring, joined by Miller
and McMorrow, JJ.) (acknowledging that this court has responded to
inartful briefing in many cases). In contrast to my colleagues in the
majority, I believe defendant’s briefing adequately provides enough
in the way of analysis for this court to address the question “we
granted leave to appeal to answer in this case.”
In his opening brief, defendant identifies the first issue with the
following heading: “Scientists have not accepted the Horizontal Gaze
Nystagmus (HGN) field sobriety test as a valid scientific technique
and thus HGN evidence is not admissible under the Frye standard.”
While this heading or statement of the issue is overly broad, I note
that in the body of the argument which follows it, defendant states
that because Illinois reviewing courts have never affirmed the use of
the HGN field test in a DUI prosecution after a fully litigated Frye
hearing, “a hearing should have been held in this case and it was
improper for the courts below to take judicial notice of general
acceptance through the 1996 decision of the Arizona court.” This, of
course, is the “threshold question” raised in defendant’s PLA.

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Elsewhere in this same argument, defendant argues that “HGN
evidence is subject to the Frye test” and that because “Illinois law
provides no conclusive answer on the admissibility of HGN, it must
be novel and subject to the Fyre standard.”
In light of the above, defendant did indeed raise the “threshold
question” in his brief. Under Frye, which is followed in Illinois, the
evidence in question must be generally accepted in the relevant
scientific community before it can be admitted. See People v. Miller,
173 Ill. 2d 167 (1996). This case presents the question of whether it
is necessary to conduct a hearing pursuant to Frye prior to the
admission of the result of a HGN test in a criminal trial for DUI.
Defendant’s brief suggests that such evidence is not generally
accepted in the relevant scientific community while the State posits
that not only does the relevant scientific community find such
evidence generally acceptable, a trial court need not hold an
evidentiary hearing to so conclude but rather can take judicial notice
of the fact. Thrown in for good measure is a basic disagreement
between the parties over the question of whether the necessity of a
Frye hearing turns on the novelty of the scientific evidence in
question. Simply stated, there is nothing about defendant’s brief that
prevents this court’s resolution of these questions.1
I am also troubled by another aspect of today’s decision. The
court’s opinion spends a great deal of time reciting the procedural
history of the case, including what was contained in defendant’s

1
Even if I could agree that defendant did not address the “threshold
question” in his brief, I could not agree with the court’s resolution of the
appeal. I note that our appellate rules allow for a PLA to stand as an
opening brief. See 177 Ill. 2d R. 315(g). Although defendant did not comply
with this rule, this court could, in lieu of dismissal in light of the split of
opinion in our appellate court, strike defendant’s brief and rely solely on his
PLA and the arguments contained in it. This approach would have been
workable here given that the State’s brief contains an argument addressed
to the “threshold question” raised in the petition. In my view, such an
approach would strike a more appropriate balance in dealing with what is
perceived by the court as defendant’s briefing deficiencies because it would
allow the highest court of this state to do what it is supposed to do in cases
taken on its discretionary appeal docket, i.e., provide guidance to the lower
courts by resolving a conflict caused by one of our opinions.

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initial motion in limine (slip op. at 2-4) and what was said by counsel
in response to questions posed by the court (slip op. at 5-6). In fact,
in its “Background” section, the court states, “[f]or purposes of the
present appeal, only the procedural history of the case is relevant.”
Slip op. at 2. Given that the court is dismissing the appeal due to
defendant’s “failure to argue the issue upon which we granted leave
to appeal” (slip op. at 8), its opinion should amount to nothing more
than an order of dismissal, and the “procedural history of the case” is
wholly irrelevant. This leads me to wonder whether my colleagues in
the majority are suggesting that defendant did not properly preserve
his objection to the admission of the HGN test evidence. If so, I
disagree.
As I noted previously, defendant moved in limine to bar the
admission of the HGN evidence. At the hearing on the motion, the
circuit court was concerned not with the substance of the motion but,
rather, whether the ensuing delay that holding such a hearing would
cause would be attributable to defendant. Defense counsel later told
the court that he would “waive” the HGN-test motion.
Notwithstanding this “waiver” of the motion, the trial court allowed
defendant to again request a Frye hearing during trial. Citing to
Basler, the circuit court denied the motion in a substantive ruling.
Defendant later raised the failure of the circuit court to conduct a
Frye hearing as a basis for granting him a new trial in his posttrial
motion. The circuit court held a hearing on the motion, at which the
parties provided extensive argument on this issue.
In order to properly preserve an issue for appellate review, a
defendant must both make a contemporaneous objection and raise the
matter in a posttrial motion. People v. Enoch, 122 Ill. 2d 176 (1988).
Despite his initial “waiver” of the motion, defendant apparently
renewed the motion at trial, and the trial judge entertained it on its
merits. This satisfies the contemporaneous-objection requirement
needed for preserving an issue for review. The matter was also raised
in the posttrial motion, thereby satisfying the posttrial motion
component of the rule. Thus, any implicit suggestion that, because
this matter was not properly preserved, the court need not resort to its
supervisory authority in response to defendant’s “failure to address
the issue upon which we granted leave to appeal” misses the mark
completely. Along these same lines, I believe that if the appeal is

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being dismissed solely on the ground that defendant failed “to
address the issue upon which we granted leave to appeal,” the court
should withhold making statements concerning (i) how any error in
the admission of the evidence would or would not have affected his
conviction and (ii) whether his conviction and sentence would “still
stand.” Slip op. at 8. Given the purely technical grounds identified by
the court as the reason for the appeal’s dismissal, it is irrelevant what
this court thinks about the substance of defendant’s convictions,
which stand by virtue of the appellate court’s affirmance. Any written
opinion in this case should be limited only to the fact that the appeal
is being dismissed due to “defendant’s failure to argue the issue upon
which we granted leave to appeal.”
In light of the forgoing, I cannot agree with the court’s disposition
of this appeal, which serves only to prolong unnecessarily the debate
currently raging in the appellate court with respect to our opinion in
Basler. Having read defendant’s PLA, his opening brief, the State’s
brief, and defendant’s reply brief, I believe this court can answer the
question raised in this appeal. I strongly disagree with court’s refusal
to do so.

JUSTICE McMORROW joins in this dissent.

Dissent Upon Denial of Rehearing

JUSTICE FREEMAN, dissenting:
I continue to believe that the court wrongly dismissed this appeal
and thus continue to voice my strongest disapproval of the court’s
actions upon denial of rehearing.
Defendant’s petition for rehearing contains two main arguments.
In the first section, defendant’s attorney maintains that the brief she
filed did, indeed, contain the issue upon which this court granted the
petition for leave to appeal. In the second section of the petition,
defendant’s attorney states the following:
“Based on this Court’s decision to dismiss Andre Robinson’s
appeal from his criminal conviction due to counsel’s
inadequate briefing, appellate counsel seeks leave to
withdraw due to her deficient representation, and requests

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 appointment of new counsel to properly brief the issues that
the Court defines.”
In essence, defendant’s attorney is confessing to having rendered
defendant ineffective assistance of counsel. It is unclear to me why
this portion of the defendant’s petition for rehearing has not
generated any type of response from my colleagues in the majority.
Do they not agree that an appointed attorney provides ineffective
assistance of counsel when her purported failure to properly argue the
issue upon which an indigent defendant was granted leave to appeal
results in the dismissal of that appeal? The court’s silence, in the face
of its initial condemnation of counsel’s actions in this case, is
difficult to explain.
Turning to the first section of defendant’s petition for rehearing,
I agree that the defendant’s brief did in fact contain argument on the
question upon which this court granted leave to appeal. In Illinois, the
exclusive test for the admission of expert testimony is governed by
the standard first expressed in Frye v. United States, 293 F. 1013
(D.C. Cir. 1923). Donaldson v. Central Illinois Public Service Co.,
199 Ill. 2d 63 (2002). Under Frye, scientific evidence is admissible
at trial only if the methodology or scientific principle upon which the
opinion is based is “sufficiently established to have gained general
acceptance in the particular field in which it belongs.” Frye, 293 F.
at 1014. A trial judge will apply the Frye test only if the scientific
principle, technique, or test offered by the expert to support his or her
conclusion is “new or novel.” Donaldson, 199 Ill. 2d at 79, citing
People v. Basler, 193 Ill. 2d 545, 550-51 (2000). “Only novelty
requires that the trial court conduct a Frye evidentiary hearing to
consider general acceptance.” Donaldson, 199 Ill. 2d at 79. Once
such a principle, technique or test has gained general acceptance in
the particular scientific community, its general acceptance is
presumed in subsequent litigation. Donaldson, 199 Ill. 2d at 79. For
this reason, DNA analysis does not require a Frye hearing because
the principles have been found to be generally accepted. See
Donaldson, 199 Ill. 2d at 79.
Applying the above principles to this case, it is difficult to
comprehend the court’s continued insistence that the argument raised
in defendant’s brief was forfeited because it was not the issue upon
which this court granted leave to appeal. Defendant, in his brief,

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argued that HGN evidence does not meet the Frye standard. In his
petition for leave to appeal, defendant identified the issue for review
as being whether a defendant is entitled to a Frye hearing to
determine whether HGN test results are admissible as evidence of
driving under the influence. Importantly, our case law dictates that if
a scientific technique or test, in this case the HGN test, is viewed as
generally accepted, then no Frye hearing need be held. But if the test
is novel or new, then a Frye hearing must be held so that the fact
finder can rule on whether it is generally accepted and thus
admissible. In his brief, defendant argued that a Frye hearing should
have been held because our opinion in Basler did not resolve the
question of the HGN test’s general acceptance. Specifically, the brief
states:
“Because Illinois reviewing courts have never affirmed the
use of the HGN field test in a DUI prosecution after a fully-
litigated Frye hearing, a hearing should have been held in this
case and it was improper for the courts below to take judicial
notice of general acceptance through the 1986 decision of an
Arizona court.” (Emphasis in original.)
In the petition for rehearing, defendant’s attorney identifies
substantive sections from the brief where she explained (i) why the
lower courts’ had incorrectly held that HGN testing was generally
accepted in light of Basler and (ii) why the circuit court’s failure to
hold a Frye hearing was incorrect. As she did in her reply brief to the
State’s assertions of forfeiture, defendant’s attorney, in the petition
for rehearing, points to this court’s decision in In re Commitment of
Simons, 213 Ill. 2d 523 (2004), in which this court ruled, for the first
time, that de novo review of Fyre decisions was appropriate as being
the reason why she organized the brief in the manner in which she
did. Notably, the court continues to ignore this argument today just
as it did when it filed its original opinion.
Defendant’s brief, not surprisingly, took the view that a Frye
hearing should have been held in this case. It also took the view that
failure to hold the hearing could not be harmless because HGN
evidence does not meet the Frye standard and any admission of such
evidence was prejudicial. I do not understand how five members of
this court can hold that these arguments are different from the issue
raised in the petition for leave to appeal. As I see it, the court either

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lacks a basic understanding of the substance of the Frye claim that is
at issue in this appeal or has, for some reason, read defendant’s brief
in an overly narrow and rigid manner. Given my utmost respect for
my colleagues’ legal intellect, I can only conclude that the latter
reason is the true cause for this result, and the court should grant
rehearing in order to rectify this.
Moreover, even if the court were justified in its criticism of
defendant’s brief as having violated the appellate rules of briefing, I
continue to believe that its imposition of the harshest sanction
available, dismissal, is wholly unwarranted. As I noted in my original
dissent in this case, the court could have stricken the brief and
restricted defendant to the single argument the court alleges was
advanced in his petition for leave to appeal. In that way, the court
could have made its point and, at the same time, still addressed an
issue of law that has wrought confusion in the lower courts. Indeed,
in the petition for rehearing, counsel formally asks this court to do
just that if it denies her motion to withdraw based on having rendered
ineffective assistance of counsel. The court ignores this motion just
as it ignored me when I raised the same solution in my original
dissent. To this day, the court has remained unwilling or unable to
explain why it could not produce an opinion in this case which
resolved “the issue upon which we granted leave to appeal.” Slip op.
at 8.
It is not enough that the court is wrong in its conclusions
regarding the adequacy of defendant’s brief and its choice of sanction
for that purported inadequacy. Its decision to dismiss the appeal has
several implications that reach beyond this case, which I address in
turn. First, since this court issued its fractured decision in People v.
Basler, 193 Ill. 2d 545 (2000), both our trial courts and appellate
court have struggled with the admission of HGN evidence in DUI
cases. Unfortunately, DUI litigation is not an obscure, rarely
practiced field of law in this state. In 2005 alone, our circuit courts
across the state disposed of 62,560 DUI cases. 2005 Annual Report
of the Illinois Courts, Statistical Summary, at 43. One would like to
believe that the heavy volume of these cases in our court system
would prompt the court to fashion the sanction imposed in this case
in such a way so as to allow the court to address the important legal
issue this case presents, particularly because the legal community

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“rel[ies] on our opinions to map the evolving course of the law.”
People v. Jung, 192 Ill. 2d 1, 17 (2000) (McMorrow, J., specially
concurring, joined by Miller and Freeman, JJ.). As I pointed out in
my original dissent, this court’s raison d’etre is to provide guidance
to the lower courts by resolving conflicts created by one of its own
opinions. As it stands, both bench and bar must now wait until
another day for the needed clarification in this important area of the
law simply because of the court’s unjustified belief that defendant’s
brief failed to argue the issue upon which we granted leave to appeal.
Second, the court’s action displays a profound insensitivity to the
effect its holding has on the people involved in this case. Defendant
has, of course, lost the opportunity to be heard in this court that he
won when we granted him leave to appeal. Overlooked, however, is
the fact that this court has maligned defendant’s appellate attorney
wrongly. I continue to maintain that defendant’s brief did not suffer
from the fatal flaws identified by the court in its opinion. As noted at
the outset of this dissent, defendant’s attorney seeks leave to
withdraw if the court continues to view her brief in the same manner.
If the brief was truly as bad as the court has held it to have been, why
not allow appointed counsel to withdraw? Perhaps the reason for the
court’s silence is that the brief was not the flawed document that it
was painted to be in its opinion, and my colleagues do not want this
attorney to have the stain on her professional record that confessing
to providing ineffective assistance of counsel would bring. Such
benevolence, of course, overlooks the fact that, as it stands right now,
defendant’s attorney will have to bear the undeserved consequences
that the court’s opinion will have on her career going forward. There
can be no question that the court’s opinion spoke negatively of her
work product. How the court’s unjust characterization has affected
the attorney’s standing with her superiors is unknown. But, if this
attorney has aspirations for a judicial career, this case exists in the
public domain. She would be vulnerable to criticism as a result of it.
I can only wonder how my colleagues would react if their
professional reputations were sullied in such fashion.
Finally, the court’s treatment of this case should give pause to all
attorneys who practice before us. By its actions, the court has
provided our legal community with an unflattering look into its
decisionmaking process. This is not a court to which the strictures of

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our own rules or the doctrine of procedural default are scrupulously
honored. Were it so, today’s decision might be more understandable.
But that is not the case. This court routinely addresses arguments in
the face of procedural irregularities, which would otherwise render
the claims defaulted. See People v. McCarty, Nos. 100469, 100813
cons., slip op. at 22-23 (October 19, 2006) (reaching search warrant
specificity argument despite the fact that the issue was not contained
in the petition for leave to appeal); Wauconda Fire Protection
District v. Stonewall Orchards, LLP, 214 Ill. 2d 417 (2005) (allowing
petition for leave to appeal to stand despite of failure to comply with
Supreme Court Rule 315). Such an inconsistent application of
appellate rules and the doctrine of procedural default does not inspire
confidence in this court. Rather, it has the opposite effect. As our
Chief Justice recently noted in his address to the 2006 Illinois
Judicial Conference, “if our judgments are suspect or inconsistent, we
have nothing else to fall back on and our influence will diminish.” J.
Rooney, Thomas Wants Judiciary to Earn Respect, Chicago Daily
Law Bulletin, October 19, 2006. This opinion serves as yet another
window to the arbitrary nature of this court’s jurisprudence in this
area and reveals that our inconsistency can have dire effects on both
litigants and practitioners. Stated bluntly, there is no rhyme or reason
to the court’s actions from case to case as rules are relaxed for some
and strictly adhered to for others. I submit that this is not how a
reviewing court should operate.
In light of the above, I continue to strongly disagree with the
actions taken by the court in this case and would grant rehearing.

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