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.” 223 Ill. 2d at 175. 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.
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.” 223 Ill. 2d at 173. The court believes that defendant does not address this question “at all” (223 Ill. 2d at 173) and “has failed to argue the threshold question — whether he should have been given a Frye hearing.” 223 Ill. 2d at 174. 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. 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 Frye 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 an 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 initial motion in limine (223 Ill. 2d at 167-70) and what was said by counsel in response to questions posed by the court (223 Ill. 2d at 170-71). In fact, in its “Background” section, the court states, “For purposes of the present appeal, only the procedural history of the case is relevant.” 223 Ill. 2d at 167. Given that the court is dismissing the appeal due to defendant’s “failure to argue the issue upon which we granted leave to appeal” (223 Ill. 2d at 175), 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 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.” 223 Ill. 2d at 174. 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 the court’s refusal to do so.
JUSTICE McMORROW joins in this dissent.
Dissent Upon Denial of Rehearing
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.