The opinion of the court was delivered by: Chief Justice Harrison
Docket No. 87770-Agenda 31-May 2000.
Following a jury trial in the circuit court of Jackson County, defendant, Linda Basler, was convicted of driving under the influence and sentenced to 12 months' probation. The appellate court reversed and remanded for a new trial. We granted the State's petition for leave to appeal. 177 Ill. 2d R. 315. For the reasons that follow, we now affirm the appellate court's judgment as modified.
In October of 1996, defendant was arrested by police and charged with driving under the influence of alcohol (625 ILCS 5/11-501 (West 1996)). The circuit court appointed the Jackson County public defender to represent her. On the day of her trial, defendant requested a continuance to seek private counsel on the grounds that she and her appointed attorney did not agree on certain matters. Defendant also advised the court that she had been ill, that she did not feel capable of assisting in her defense, and that some of her witnesses were not able to testify that day.
The circuit court denied defendant's motion, and the matter proceeded to trial before a jury. The jury returned a verdict of guilty. The circuit court then sentenced defendant to 12 months' probation and fined her $300. The court also ordered defendant to pay $5 per month for the services of the probation office and to pay $25 for the services of her public defender.
Defendant filed a post-trial motion for a new trial, arguing that the State had failed to prove its case beyond a reasonable doubt. That motion was denied, and defendant appealed. As grounds for her appeal, defendant asserted that the circuit court abused its discretion when it denied her motion for a continuance without making further inquiry into the circumstances involved and without making a finding that she had brought the motion to delay trial. Defendant further contended, among other things, that the trial court should not have ordered her to pay a fee to the public defender's office without holding a hearing on her financial circumstances and her ability to pay.
The appellate court reversed and remanded for a new trial in an unpublished order. No. 5-97-0979 (unpublished order under Supreme Court Rule 23). As grounds for its decision, the court held that the circuit court had committed reversible error when it rejected defendant's motion for a continuance without inquiring further into the circumstances or finding that she had presented the motion merely to delay the trial. The appellate court further held that the trial judge should not have required defendant to pay the $25 fee for her public defender without first holding a hearing on her ability to pay. In disposing of the case, the appellate court directed the circuit court to hold such a hearing on remand and to provide a court reporter to memorialize that hearing.
Defendant petitioned for rehearing, asking the appellate court to consider additional claims she had raised on appeal, including a claim that the circuit court should not have received evidence of the results of a horizontal-gaze-nystagmus (HGN) test without first conducting a hearing under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Although the appellate court purported to deny defendant's petition, it vacated its decision and filed a new, published opinion in its stead.
In its opinion, the court reiterated its prior holdings in the case, but added a discussion regarding the Frye issue. 304 Ill. App. 3d 230. The court noted that it had previously ruled that the HGN test meets the Frye standard and is admissible when a proper foundation is laid. See People v. Buening, 229 Ill. App. 3d 538, 545-46 (1992). The court observed, however, that People v. Kirk, 289 Ill. App. 3d 326 (1997), a subsequent decision from another district of the appellate court, took a different view. In Kirk a divided panel of the Fourth District of the appellate court held that it is necessary to conduct a Frye hearing prior to the admission of the result of a HGN test in a criminal trial for DUI. Kirk, 289 Ill. App. 3d at 331.
Although it cited Kirk with approval, the appellate court in this case stopped short of embracing that decision and overruling Buening. Similarly, it did not expressly hold that the trial court had erred in admitting the HGN test results at the original trial without first conducting a Frye hearing. Instead, it simply suggested that if a new trial is held following remand and the State wishes to introduce evidence of the HGN test results, then "a Frye hearing might well be appropriate."
On this appeal, the State does not take issue with the appellate court's decision to reverse and remand for a new trial based on the circuit court's refusal to grant defendant a continuance. Nor does it contest the appellate court's determination that the trial judge should not have required defendant to pay the $25 fee for her public defender without first holding a hearing on her ability to pay. The State's sole concern is the appellate court's handling of the Frye issue.
The State contends that the appellate court's decision is problematic because it denied the State the opportunity to address defendant's request that the appellate court address admissibility of HGN test results under the Frye standard. According to the State, the appellate court's decision to vacate its original order and file a new opinion in its place was tantamount to granting defendant the relief she requested on rehearing. Where a petition for rehearing is allowed, the opposing party has the right under our rules to respond. 155 Ill. 2d R. 367(d). Because the court in this case purported to deny defendant's petition for rehearing, however, the State was deprived of that right. 155 Ill. 2d R. 367(d).
The appellate court's decision is also problematic, according to the State, because its directions to the circuit court are ambiguous and confusing. As we have indicated, the appellate court's decision neither overrules Buening nor expressly adopts Kirk and gives no clear indication as whether a Frye hearing is, in fact, required on remand.
Before considering the State's contentions, we must first address the position taken by defendant. In responding to the State's arguments, defendant goes beyond the points raised by the State and invites our court to use this matter as a vehicle for considering whether HGN test results should ever be admitted in prosecutions for driving under the influence. This we decline to do. The problem with undertaking such an expansive analysis is that validity of the HGN test was never challenged in the trial court. Defense counsel raised no objection to the admission of the HGN test results against defendant, and use of the HGN test results was not contested by defendant in her post-trial motion.
As a general rule, a defendant must object to an error at trial and include the objection in a post-trial motion in order to preserve it for review on appeal. People v. Enoch, 122 Ill. 2d 176, 186 (1988). A reviewing court may override considerations of waiver where plain errors or defects affecting substantial rights are involved. 134 Ill. 2d R. 615(a). The present case, however, involves neither circumstance. In addition, because validity of the HGN test was not raised below, the record is devoid of the evidentiary material necessary to assess defendant's challenge. Such material cannot be presented to an appellate court in the first instance. We are ...