Appeal from Circuit Court of Macon County No. 09CF1388 Honorable Timothy J. Steadman, Judge Presiding.
The opinion of the court was delivered by: Justice McCULLOUGH
JUSTICE McCULLOUGH delivered the judgment of the court, with opinion.
Presiding Justice Turner and Justice Steigmann concurred in the judgment and opinion.
¶ 1 Following an August 30, 2009, traffic stop, the State charged defendant, Harold D. Korzenewski, with (1) aggravated driving under the influence of alcohol (count I) (625 ILCS 5/11-501(d)(2)(C) (West 2008)), (2) driving while license suspended or revoked (count II) (625 ILCS 5/6-303(d-3) (West 2008)), and (3) unlawful possession of drug paraphernalia (count III) (720 ILCS 600/3.5(a) (West 2008)). Defendant tendered an open guilty plea on counts II and III and proceeded to trial on count I.
¶ 2 On the day of the March 2010 trial, defense counsel filed a motion in limine seeking to bar any testimony regarding the horizontal gaze nystagmus (HGN) test conducted on defendant at the time of the traffic stop when no other tests were performed. Counsel argued that under People v. McKown, 236 Ill. 2d 278, 924 N.E.2d 941 (2010) (McKown II), "the undue prejudice of [the HGN] evidence outweighs its probative value." Immediately before voir dire, the trial court conducted a hearing on defendant's motion in limine. Defendant expressed his concern that since the only field sobriety test given was the HGN, when the jurors hear "evidence of the HGN test they will assume that a failure is an absolute failure, meaning they will just assume that defendant was intoxicated at the time the officer pulled him over. And absent any other tests to verify the finding in the HGN, we think that the evidence is unduly prejudicial." After hearing arguments from both parties, the court denied the motion, and the jury trial commenced. At the jury trial, defense counsel made no objection to the arresting officer's testimony about the HGN test or foundation for that testimony. On cross-examination, defense counsel asked several questions on the HGN test. The gist of the officer's testimony was that defendant was speeding, he stopped defendant, and defendant refused the one-legged stand and walk-and-turn tests stating he would fail them. Defendant also refused a Breathalyzer test. The jury found defendant guilty of aggravated driving under the influence of alcohol.
¶ 3 In April 2010, defense counsel filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial. Counsel alleged (1) the trial court erred in denying defendant's motion in limine seeking suppression of the HGN test and (2) the evidence was insufficient to prove defendant guilty beyond a reasonable doubt. Following a May 2010 hearing where arguments from both parties were heard, the court denied the posttrial motion and proceeded to sentencing. The court sentenced defendant to five years' imprisonment on count I and ordered him to pay $133 in restitution to the Decatur police department. Additionally, the court sentenced defendant to four years' imprisonment on count II to be served concurrently with the five-year sentence on count I and imposed a $750 fine for count III.
¶ 4 In June 2010, defendant filed a notice of appeal and a motion for reduction of sentence. We docketed his appeal and remanded with directions to strike the notice of appeal and proceed on defendant's motion to reconsider sentence. People v. Korzenewski, No. 4-10-0451 (Aug. 11, 2010) (unpublished order under Supreme Court Rule 23). The trial court struck defendant's pro se notice of appeal as directed, and defendant filed an amended motion to reconsider sentence. In December 2010, the trial court denied defendant's amended motion to reconsider sentence after a hearing.
¶ 5 This appeal followed.
¶ 6 On appeal, defendant asserts (1) he was denied a fair trial when the trial court admitted evidence of the HGN test because the State failed to lay a proper foundation for the officer's testimony regarding the HGN test as the officer who administered the test did not follow the strict protocols required in the National Highway Traffic Safety Administration (NHTSA) DWI Detection and Standardized Field Sobriety Testing, Student Manual (Manual), and (2) the court erred in ordering the $133 restitution because the Decatur police department is not a victim eligible for restitution. The State responds (1) defendant forfeited his foundation argument because he failed to preserve the issue for review and, absent forfeiture, no error resulted from the admission of the HGN test; and (2) the restitution was properly ordered. We agree with the State that defendant has forfeited the foundation issue, but agree with defendant that the restitution order was improper.
¶ 7 Generally, "[t]o preserve an issue for appeal, the defendant must have raised the issue in a motion in limine or an objection at trial and also in a posttrial motion." People v. Brown, 319 Ill. App. 3d 89, 96, 745 N.E.2d 173, 181 (2001). The failure to properly preserve an issue for review results in forfeiture. People v. Sorrels, 389 Ill. App. 3d 547, 552, 906 N.E.2d 788, 793 (2009). To challenge the foundation for admission of a test, a defendant must make a "timely and specific objection to the foundation requirements." People v. Rigsby, 383 Ill. App. 3d 818, 823, 890 N.E.2d 1146, 1150 (2008). See also People v. Trefonas, 9 Ill. 2d 92, 98, 136 N.E.2d 817, 820 (1956) (regarding timeliness requirement on objections, stating, "A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at the trial."). "[A]n objection requirement is especially important in cases of an improper foundation because errors in laying a foundation are easily cured." Rigsby, 383 Ill. App. 3d at 823, 890 N.E.2d at 1150 (citing People v. DeLuna, 334 Ill. App. 3d 1, 21, 777 N.E.2d 581, 598 (2002)); see also 3 Robert J. Steigmann & Lori A. Nicholson, Illinois Evidence Manual§ 20:4, at 144-45 (4th ed. 2006) (citing People v. Bush, 214 Ill. 2d 318, 336-37, 827 N.E.2d 455, 466 (2005), and People v. Taylor, 357 Ill. App. 3d 220, 226, 828 N.E.2d 799, 804 (2005)). Further, "a defendant forfeits any issues as to the impropriety of evidence if he procures, invites, or acquiesces in the admission of that evidence." People v. Durgan, 346 Ill. App. 3d 1121, 1131, 806 N.E.2d 1233, 1241 (2004).
¶ 8 Defendant concedes neither the motion in limine nor the posttrial motion specifically alleged that the officer failed to follow the guidelines delineated in McKown II and the NHTSA Manual. However, defendant cites People v. Hudson, 157 Ill. 2d 401, 434-35, 626 N.E.2d 161, 175 (1993), for the proposition the foundation issue was still properly preserved when defense counsel filed the motion in limine and raised the issue again in his posttrial motion.Defendant acknowledges that reviewing courts have recognized that "[a] specific objection to the admission of evidence waives all grounds not specified." Brown, 319 Ill. App. 3d at 96, 745 N.E.2d at 180. However, defendant argues the forfeiture or procedural default rule "should not trump the rule recognized in Hudson."
¶ 9 In Hudson, defense counsel sought to prohibit the prosecutor from making any reference to defense expert Dr. Marbin Ziporyn's relationship with Richard Speck (a then-notorious serial murderer). Hudson, 157 Ill. 2d at 434-35, 626 N.E.2d at 175. The defendant had raised this issue on appeal in both a pretrial motion in limine and in a posttrial motion. Id. The State had argued that the defendant forfeited the issue because he failed to object during trial, but our supreme court disagreed, holding defendant had preserved the issue by raising it in the pretrial and posttrial motions. Id. This case is distinguishable from Hudson, however, because Hudson does not involve preserving a foundational challenge. Defendant here did not raise any foundation error regarding the HGN test in either his motion in limine or his posttrial motion. Further, as the State points out, defendant could not have anticipated a foundation issue prior to trial and, thus, the foundation issue could not have been included in his motion in limine.
¶ 10 Defendant also contends, however, that the foundation issue was properly preserved because the question of whether the prejudicial nature of the officer's testimony outweighs its probative value is "inextricably intertwined" with the question of whether the officer's testimony met the standards outlined in McKown II and the NHTSA Manual. In People v. McKown, 226 Ill. 2d 245, 253, 875 N.E.2d 1029, 1034 (2007) (McKown I), the defendant challenged the admissibility of her HGN test, asserting that the trial court erred by admitting her HGN test results without first holding a Frye hearing to determine whether the HGN test was generally accepted in the scientific community as a reliable indicator of alcohol impairment. Our supreme court found the trial court erred in admitting the HGN testimony by taking judicial notice and remanded for a Frye hearing. Id. at 276, 875 N.E.2d at 1047. On remand, the trial court conducted a Frye hearing and held " 'the clinical HGN test is generally accepted in the scientific world of ophthalmology and optometry as a reliable (preliminary) indicator of alcohol impairment' " and satisfies the Frye standard. McKown II, 236 Ill. 2d at 293, 924 N.E.2d at 949-50. Further, the trial court concluded " '[a] proper foundation must include that the witness [(1)] has been adequately trained, [(2)] has conducted testing and assessment in accordance with the training, and that [(3)] he administered the particular test in accordance with his training and proper procedures.' " Id., 924 N.E.2d at 950.
¶ 11 In McKown II, the defendant argued that the State failed to lay a proper foundation for the results of her HGN test to be admitted at trial. Id. at 294, 924 N.E.2d at 950. Specifically, the defendant asserted the officer failed to comply with NHTSA standards because he (1) "did not testify that he checked her eyes for equal tracking before conducting the HGN test"; (2) "did not testify that he checked her eyes for equal pupil size"; (3) "did not describe the speed at which he moved the stylus or that he held the stylus at the point of maximum deviation for the requisite four seconds"; (4) "did not testify that he repeated the procedure twice" as required by NHTSA; and (5) "confused two of the clues when he combined two steps in the protocol." Id. at 307, 924 N.E.2d at 957.
¶ 12 The State argued that defendant forfeited the HGN test foundation argument because she did not raise the issue at trial or in a posttrial motion, and, thus, the State was deprived of the opportunity to cure any defect in the foundation testimony. Id. Our supreme ...