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 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, 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 1996 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 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.” 223 Ill. 2d at 175.
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 “reifies] 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 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, 223 Ill. 2d 109, 140-42 (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 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.