NO. 4-01-0094

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PRESIDING JUSTICE MYERSCOUGH delivered the opinion of the court:

In December 2000, the trial court found defendant,Michael D. Canulli, guilty of speeding (625 ILCS 5/11-601(b)(West 2000)), sentenced him to two months' court supervision, andordered him to pay a fine and costs. Defendant appeals, arguingthat (1) the State did not lay an adequate foundation for theadmissibility of the results of the Lidar laser unit, and (2) theState failed to prove him guilty beyond a reasonable doubt. Wereverse.

I. BACKGROUND

In June 2000, defendant received a ticket for traveling80 miles per hour in a 65-mile-per-hour zone. 625 ILCS 5/11-601(b) (West 2000). The trial court conducted a bench trial. The evidence revealed that Gerry Garner and Daniel Fruge wereboth police officers with the Illinois State Police and wereassigned to apprehend vehicles traveling on southbound Interstate55 that were exceeding the speed limit. Garner was in hisvehicle on the southbound entrance ramp to Interstate 55, northof the bridge. He was assigned to wait for a radio transmissionfrom Fruge, who was positioned above Interstate 55 on an overpassmeasuring the speed of vehicles. Fruge described the device hewas using to time the speed of vehicles traveling southbound onInterstate 55 as a laser unit called "Lidar." Fruge was trainedand tested in the use of Lidar and had used the laser unit forfour to five years. The laser unit has an internal calibration,emits a tone, and has a red dot that is aimed at a vehicle. Fruge tested the accuracy of the laser unit at the "beginning ofhis detail" by testing the speed of a stationary post at "0."

At 10:20 a.m., Fruge put the laser on a white van-typevehicle traveling in the southbound lanes, keeping that vehiclein his sight the entire time. The digital reading on the laserunit was 80 miles per hour. Fruge testified that the vehicle wastraveling at 80 miles per hour. Defendant objected, arguing lackof foundation and hearsay. The trial court allowed defendant astanding objection to such testimony. Fruge further testifiedthat he radioed Garner to pull over a white van-type vehicle. Garner waited for the vehicle to appear, pursued, and stopped thevehicle at milepost 119, south of the overpass. Garner issued acitation to defendant for traveling 80 miles per hour in a 65-miles-per-hour zone at milepost 119.

Defendant did not cross-examine the State's witnesses. The State rested. Defendant made an oral motion for a directedverdict of not guilty, arguing that Garner's testimony wasirrelevant to determining the speed of defendant's vehicle andshould be ignored. Further, Fruge's testimony was not competentevidence either as to the accuracy or reliability of the laserunit. Defendant also argued that Fruge's testimony of speedingwas hearsay and lacked proper foundation because the Statepresented no evidence of Furge's expertise or scientific training. Defendant also argued that the State did not request orreceive any ruling that the trial court had taken judicial noticeof the accuracy and reliability of laser as a scientificallyaccurate means to measure speed. Defendant argued that althoughreviewing courts had taken judicial notice of Doppler radar, noreviewing court in Illinois had ever taken judicial notice of thereliability or accuracy of Lidar or laser technology as a meansof measuring speed, thereby necessitating a Frye evidentiaryhearing. See Frye v. United States, 293 F. 1013 (D.C. Cir.1923). Defendant argued that absent scientific evidence orjudicial notice, the laser evidence was inadmissible due to lackof proper foundation. Defendant argued, therefore, that theState failed to prove its case beyond a reasonable doubt. Defendant also argued that case law required the officer to checkthe laser equipment before and after the stop, not simply at thebeginning of the shift.

The State requested time to respond. Over defendant'sobjection, the trial court allowed the State seven days torespond and defendant seven days to reply. The State responded,arguing that in December 1996, in a traffic case in the circuitcourt of that county, a Frye evidentiary hearing had been heldregarding the admissibility of evidence obtained through the useof laser technology and equipment. At the conclusion of thatFrye hearing, the court held that the evidence of laser technology was admissible, scientifically reliable, and an acceptedmeans of obtaining proof of the speed of an automobile in circuitcourts of Logan County. The State attached bystanders' reportsfrom the judge and attorneys in that 1996 case who attested thata Frye hearing had been conducted. On October 16, 2000, thetrial court in this case denied defendant's motion for a directedverdict.

On October 19, 2000, defendant filed his reply, whichthe trial court construed as a motion to reconsider. On November3, 2000, the court denied that motion. On November 29, 2000,defendant's trial resumed. Defendant called the officers totestify. Garner's testimony was essentially the same as hisprevious testimony. He was assigned to wait for a radio transmission from Fruge. When Garner received the radio transmission,he was to intercept the cars described by Fruge and then write aticket for the speeding violation. Garner testified that he hadno personal knowledge of the speed of defendant's vehicle. Heissued defendant a speeding ticket based solely upon what speedFruge told him defendant's car was traveling.

Fruge testified that he was "clocking" southboundvehicles. He pointed the laser at oncoming cars. Fruge testified that he had no degrees or specialized training in mathematics, calculus, or engineering. He knew how to operate the laserunit but did not know how it operated internally. Fruge basedhis testimony that defendant was speeding on what the laser unitindicated.

Defendant testified on his own behalf. He testifiedthat he was issued a ticket for speeding at milepost 119. Defendant noted Fruge was clocking north of the bridge. Theticket shows that defendant was speeding at milepost 119, whichis south of the bridge. Defendant testified that he was notspeeding 80 miles per hour at milepost 119.

The State argued that there was no doubt that defendantwas clocked by laser traveling 80 miles per hour in a 65-mile-per-hour zone, and defendant was stopped at milepost 119. Defendant renewed his motion for a directed verdict, which thetrial court denied. In closing argument, defendant argued thatthe court could not take judicial notice of the use of Lidarlaser technology as a scientific principle to measure speed. Defendant further argued that the State failed to ask the courtto take judicial notice of Lidar laser technology. Defendantalso argued that there was no testimony in the record as to thespeed of his vehicle at milepost 119, south of the bridge notnorth of the bridge, where Fruge had clocked defendant's car.

The State argued in closing argument that the evidencewas sufficient that defendant was speeding. Milepost 119 is thelocation where the ticket was written. If any error occurred, itwould be "harmless or clerical at best." The citation is notevidence of a crime but only notice of an alleged crime.

Following closing, the trial court asked defendant ifhe were aware that the court had a transcript of the proceedingin the other case where a Frye hearing was held as to lasertechnology. Defendant informed the court that he did not receivea copy. He had only received the State's response to his motion,which had some bystanders' reports attached. Defendant arguedthat the court could not consider the bystanders' reports or thetranscript because they involved a different court case and notan appellate court case. Defendant asked the court to clarifywhether it considered the bystanders' reports or the report ofproceedings in that previous case when it ruled on his motion fora directed verdict. The court stated in part:

"I did not have this transcript at the time[I denied the motion]. I did have the bystander's report. I did have the [S]tate'smotion or response to your motion. I didn'thave any response in my hand from you at thatpoint in time. It does still concern me thatin this case I denied that motion based upona hearing I didn't have, based uponbystander's reports of another traffic caseback in 1996. Bothered me then, it bothersme now. I am going to revisit that issue."

The trial court made a factual finding that the ticket did nothave the correct milepost on it. The court was not sure, however, whether that was a necessary element. The court took thematter under advisement. On December 13, 2000, the court foundthat the State proved defendant guilty beyond a reasonable doubt. Later that month, the court sentenced defendant to two months'court supervision and ordered him to pay a $75 fine and costs.

This appeal followed.

II. ANALYSIS

A. Motions Taken With The Case

Initially, we note that defendant has filed two motionsthat were taken with the case.

1. Report of Proceedings

Defendant filed a motion to supplement the record onappeal with the report of proceedings from the hearing on hismotion for approval of his bystander's report from the first dayof his bench trial. The State concedes that it did not object tothe bystander's report in the trial court. However, on appeal,the State argues that the bystander's report was not filed incompliance with Supreme Court Rule 323(c) (166 Ill. 2d 323(c)),and this court may reject a bystander's report that has beenerroneously certified by a trial judge. Lofendo v. Ozog, 118Ill. App. 3d 237, 241-42, 454 N.E.2d 806, 810 (1983). We findthat the State forfeited its right to complain of any errorregarding the submission of the bystander's report. People v.Johnson, 334 Ill. App. 3d 666, 680, 778 N.E.2d 772, 784 (2002),("'A party forfeits [its] right to complain of error where to doso is inconsistent with the position taken by the party in anearlier court proceeding.' In re E.S., 324 Ill. App. 3d 661,670, 756 N.E.2d 422, 430 (2001)"). We, therefore, grant defendant's motion to supplement the record with the report of proceedings from his motion for approval of his bystander's reportfrom the first day of his bench trial.

2. Motion To Correct and Conform Recordon Appeal and Other Relief

Defendant also asks this court to strike from therecord on appeal the report of proceedings from an unrelatedcase, People v. Sobol, No. 96-TR-5235 (Logan County), where aFrye evidentiary hearing was conducted to determine whether toadmit evidence regarding the use of laser technology to determinethe speed of a vehicle. Defendant contends that the report ofproceedings should not be included and considered by this courtwhen addressing the merits of the issues on appeal in his casebecause it was not part of the State's case, was filed withoutleave of the trial court or without proper notice, and was notconsidered by the court in its ruling.

Illinois law generally recognizes the power of a trialcourt to allow a litigant to reopen his or her case in an appropriate circumstance. People v. Myles, 257 Ill. App. 3d 872, 886,629 N.E.2d 648, 659 (1994). Even after the State has rested itscase, the court has the power to allow a party to put on additional evidence. See People v. Faulkner, 64 Ill. App. 3d 453,457, 381 N.E.2d 321, 324 (1978). The exercise of such discretionwill not be reversed absent a clear showing of abuse. Myles, 257Ill. App. 3d at 886, 629 N.E.2d at 659. In the present case,after the State rested, defendant moved for a directed verdict,and the trial court permitted the State to respond to defendant'sargument that a Frye hearing was required. By permitting theState to respond, the court essentially permitted the State toreopen its case. We do not find that the court abused itsdiscretion in permitting the State to reopen its case under thecircumstances here and include the bystanders' reports and reportof proceedings of the Frye hearing conducted regarding the use oflaser technology in another case.

The purpose of appellate review is to evaluate therecord presented in the trial court, and review must be confinedto what appears in the record. People v. Heaton, 266 Ill. App.3d 469, 477, 640 N.E.2d 630, 636 (1994). The record indicatesthat the trial court did not consider the report of proceedings when it denied defendant's motion for a directed verdict. Defendant, however, filed a motion to strike the report ofproceedings from the Sobol case, and the trial court denied hismotion to strike the transcript. In recalling the discussionregarding the transcript that occurred on the second day ofdefendant's trial, the court stated:

"So it would seem to me *** that I didn'thave the transcript when I ruled on the question of the reliability of LIDAR, but that ismy recollection of how that took place.

***

My recollection again, that has beensome months ago, was that when we startedthat proceeding [the second day of defendant's trial,] a discussion was had concerning the fact that a transcript had been received by the court and I was making, atleast in my mind, made it part of the recordto not bolster it but to supplement the[b]ystander[s'] [r]eport because obviouslythe transcript that was presented is a betterrecord of the Frye [h]earing that was held. So I know I had it when we started that second day of trial, and in my mind I'm sure wediscussed at that point whether or not itshould be made part of the file or at least Ithink [defendant] made the request that itnot be made part of the file, and I believethat I said as far as I was concerned it wasthe best evidence of what had taken place atthe prior Frye [h]earing and it should beincluded."

It is clear from the record that the court did not strike thereport of proceedings from the record. Therefore, those proceedings were part of the record in the trial court. Accordingly, wefind that report of proceedings is properly part of the record onappeal, and we deny defendant's motion to correct and conformrecord on appeal and other relief.

B. Frye Evidentiary Hearing

Defendant argues that the State failed to prove beyonda reasonable doubt that he was speeding. Specifically, defendantcontends that the State's entire case was predicated upon the useof Lidar laser technology and equipment, and the State failed tolay the proper foundation for its admission, did not request thecourt take judicial notice of its reliability, and did notconduct a Frye hearing. The State argues that defendant hasforfeited review of this issue because he failed to raise it in aposttrial motion.

As a general rule, a defendant must object to an errorat trial and include the objection in a posttrial motion topreserve it for review on appeal. People v. Basler, 193 Ill. 2d545, 549, 740 N.E.2d 1, 3 (2000). Defendant objected and raisedthe issue again in his reply in support of his motion for directed verdict. The trial court characterized this reply as amotion to reconsider and denied the motion. Defendant did notfile any posttrial motion after the court rendered its verdict orafter sentencing. We find, therefore, defendant forfeited reviewof this issue. However, a reviewing court may override considerations of forfeiture where plain errors or defects affectingsubstantial rights are involved. 134 Ill. 2d R. 615(a). Theplain error doctrine allows a reviewing court to consider a trialerror not properly preserved when (1) the evidence in a criminalcase is closely balanced or (2) the error is so fundamental andof such a magnitude that the defendant was denied his right to afair trial. People v. Byron, 164 Ill. 2d 279, 293, 647 N.E.2d946, 953 (1995). The only evidence that defendant was speeding80 miles per hour in a 65-mile-per-hour zone was ascertained fromthe use of a Lidar laser device technology. If the trial courterred in not conducting a Frye hearing, defendant was denied hisright to a fair trial. Therefore, we will address the merits ofdefendant's argument.

The determination of whether to admit evidence aboutnovel scientific techniques rests in the discretion of the trialcourt. People v. Eyler, 133 Ill. 2d 173, 211-12, 549 N.E.2d 268,285 (1989). The exclusive test for the admission of scientificevidence in Illinois is governed by the test set forth in Frye. Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63,76-77, 767 N.E.2d 314, 323 (2002). The Frye test has two prongs. First, the trial court must determine whether the scientificprinciple, technique, or test offered by the expert to supporthis or her conclusion is "new" or "novel." Donaldson, 199 Ill.2d at 78-79, 767 N.E.2d at 324. Second, if the scientifictechnique is "new" or "novel," the trial court conducts a Fryeevidentiary hearing to determine whether the technique has gainedgeneral acceptance in the particular scientific community. Donaldson, 199 Ill. 2d at 79, 767 N.E.2d at 32425. Therefore,pursuant to Frye, scientific evidence is only admissible at trialif the methodology or scientific principle upon which the opinionis based is "'sufficiently established to have gained generalacceptance in the particular field in which it belongs.'" Donaldson, 199 Ill. 2d at 77, 767 N.E.2d at 324, quoting Frye,293 F. at 1014. A reviewing court will not disturb a trialcourt's determination to admit evidence pursuant to the Fryestandard absent an abuse of discretion. Eyler, 133 Ill. 2d at211-12, 549 N.E.2d at 285.

A proponent of evidence subject to Frye can prove thegeneral acceptance of the proffered evidence in several ways. "[T]he proponent *** must prove general acceptance, by surveyingscientific publications, judicial decisions, or practical applications, or by presenting testimony from scientists as to theattitudes of their fellow scientists." 1 J. Strong, McCormick onEvidence