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People v. Canulli

June 30, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL D. CANULLI, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Logan County, No. 00TR4756 Honorable Donald A. Behle, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Myerscough

UNPUBLISHED

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, and ordered him to pay a fine and costs. Defendant appeals, arguing that (1) the State did not lay an adequate foundation for the admissibility of the results of the Lidar laser unit, and (2) the State failed to prove him guilty beyond a reasonable doubt. We reverse.

I. BACKGROUND

In June 2000, defendant received a ticket for traveling 80 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 were both police officers with the Illinois State Police and were assigned to apprehend vehicles traveling on southbound Interstate 55 that were exceeding the speed limit. Garner was in his vehicle on the southbound entrance ramp to Interstate 55, north of the bridge. He was assigned to wait for a radio transmission from Fruge, who was positioned above Interstate 55 on an overpass measuring the speed of vehicles. Fruge described the device he was using to time the speed of vehicles traveling southbound on Interstate 55 as a laser unit called "Lidar." Fruge was trained and tested in the use of Lidar and had used the laser unit for four 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 of his detail" by testing the speed of a stationary post at "0."

At 10:20 a.m., Fruge put the laser on a white van-type vehicle traveling in the southbound lanes, keeping that vehicle in his sight the entire time. The digital reading on the laser unit was 80 miles per hour. Fruge testified that the vehicle was traveling at 80 miles per hour. Defendant objected, arguing lack of foundation and hearsay. The trial court allowed defendant a standing objection to such testimony. Fruge further testified that he radioed Garner to pull over a white van-type vehicle. Garner waited for the vehicle to appear, pursued, and stopped the vehicle at milepost 119, south of the overpass. Garner issued a citation 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 directed verdict of not guilty, arguing that Garner's testimony was irrelevant to determining the speed of defendant's vehicle and should be ignored. Further, Fruge's testimony was not competent evidence either as to the accuracy or reliability of the laser unit. Defendant also argued that Fruge's testimony of speeding was hearsay and lacked proper foundation because the State presented no evidence of Furge's expertise or scientific training. Defendant also argued that the State did not request or receive any ruling that the trial court had taken judicial notice of the accuracy and reliability of laser as a scientifically accurate means to measure speed. Defendant argued that although reviewing courts had taken judicial notice of Doppler radar, no reviewing court in Illinois had ever taken judicial notice of the reliability or accuracy of Lidar or laser technology as a means of measuring speed, thereby necessitating a Frye evidentiary hearing. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Defendant argued that absent scientific evidence or judicial notice, the laser evidence was inadmissible due to lack of proper foundation. Defendant argued, therefore, that the State failed to prove its case beyond a reasonable doubt. Defendant also argued that case law required the officer to check the laser equipment before and after the stop, not simply at the beginning of the shift.

The State requested time to respond. Over defendant's objection, the trial court allowed the State seven days to respond and defendant seven days to reply. The State responded, arguing that in December 1996, in a traffic case in the circuit court of that county, a Frye evidentiary hearing had been held regarding the admissibility of evidence obtained through the use of laser technology and equipment. At the conclusion of that Frye hearing, the court held that the evidence of laser technology was admissible, scientifically reliable, and an accepted means of obtaining proof of the speed of an automobile in circuit courts of Logan County. The State attached bystanders' reports from the judge and attorneys in that 1996 case who attested that a Frye hearing had been conducted. On October 16, 2000, the trial court in this case denied defendant's motion for a directed verdict.

On October 19, 2000, defendant filed his reply, which the trial court construed as a motion to reconsider. On November 3, 2000, the court denied that motion. On November 29, 2000, defendant's trial resumed. Defendant called the officers to testify. Garner's testimony was essentially the same as his previous 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 a ticket for the speeding violation. Garner testified that he had no personal knowledge of the speed of defendant's vehicle. He issued defendant a speeding ticket based solely upon what speed Fruge told him defendant's car was traveling.

Fruge testified that he was "clocking" southbound vehicles. 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 laser unit but did not know how it operated internally. Fruge based his testimony that defendant was speeding on what the laser unit indicated.

Defendant testified on his own behalf. He testified that he was issued a ticket for speeding at milepost 119. Defendant noted Fruge was clocking north of the bridge. The ticket shows that defendant was speeding at milepost 119, which is south of the bridge. Defendant testified that he was not speeding 80 miles per hour at milepost 119.

The State argued that there was no doubt that defendant was 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 the trial court denied. In closing argument, defendant argued that the court could not take judicial notice of the use of Lidar laser technology as a scientific principle to measure speed. Defendant further argued that the State failed to ask the court to take judicial notice of Lidar laser technology. Defendant also argued that there was no testimony in the record as to the speed of his vehicle at milepost 119, south of the bridge not north of the bridge, where Fruge had clocked defendant's car.

The State argued in closing argument that the evidence was sufficient that defendant was speeding. Milepost 119 is the location where the ticket was written. If any error occurred, it would be "harmless or clerical at best." The citation is not evidence of a crime but only notice of an alleged crime.

Following closing, the trial court asked defendant if he were aware that the court had a transcript of the proceeding in the other case where a Frye hearing was held as to laser technology. Defendant informed the court that he did not receive a copy. He had only received the State's response to his motion, which had some bystanders' reports attached. Defendant argued that the court could not consider the bystanders' reports or the transcript because they involved a different court case and not an appellate court case. Defendant asked the court to clarify whether it considered the ...


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