from the Circuit Court of Du Page County. No. 14-CF-2021
Honorable Daniel P. Guerin, Judge, Presiding.
PRESIDING JUSTICE delivered the judgment of the court, with
opinion. Justices Schostok and Spence concurred in the
judgment and opinion.
1 After a jury trial, defendant, Koren M. Haiman, was
convicted of unlawfully possessing a controlled substance
(720 ILCS 570/402(c) (West 2014)). The trial court denied her
motion for a new trial and imposed 24 months'
first-offender probation (see id. § 410). On
appeal, defendant contends that the trial court erred in
granting the State's pretrial motion to bar her from
testifying that, at the time of the offense, she had a legal
prescription. We affirm.
2 I. BACKGROUND
3 On December 11, 2014, the State charged that, on or about
May 16, 2014, defendant knowingly and unlawfully possessed a
substance containing hydromorphone. On August 4, 2015, defendant
filed notice that she would be presenting an affirmative
defense based on section 302(c)(3) of the Illinois Controlled
Substances Act (Act) (id. § 302(c)(3)). As
pertinent here, section 302(c)(3) allows the possession of
controlled substances by "an ultimate user *** pursuant
to a lawful prescription of a practitioner."
4 On August 17, 2015, in a discovery motion, the State
requested a copy of the prescription, the name of the issuing
physician, and the date of issuance. On August 20, 2015, at a
hearing, defendant's attorney clarified that she had no
more discovery to tender, that only defendant would testify
to the prescription, and that she would not name the
physician or the date of issuance.
5 On August 24, 2015, the State moved in limine to
bar any statements by defendant as to a lawful prescription.
The State argued as follows. Section 302(c)(3) is a statutory
exemption. Therefore, under section 506 of the Act, the
burden of proof is upon the person claiming it. Id.
§ 506. Defendant had failed to tender any evidence to
place her within the exemption. Section 312(a) of the Act
(id. § 312(a)) allows a practitioner to
dispense a controlled substance "upon a written or
electronic prescription of any prescriber, dated and signed
by the person prescribing *** on the day when issued and
bearing the name and address of the patient for whom *** the
controlled substance is dispensed." Thus, the State
reasoned, the information provided in a prescription is
created by the prescriber or practitioner and is not within
the patient's personal knowledge, making defendant's
statements inadmissible hearsay. Moreover, under section
312(g) of the Act, even one with a lawful prescription for a
controlled substance "may lawfully possess such
substance only in the container in which it was delivered to
him or her by the person dispensing such substance."
Id. § 312(g).
6 Further, the State contended, defendant's mere
statement that she had had a lawful prescription for the drug
would not satisfy her burden of proof under section 506.
Finally, to allow the statements would be unfairly
prejudicial; without the name of the prescribing physician or
the date of issuance, the State would be unable to
investigate and rebut the claim of an exemption.
7 On August 24, 2015, the trial court heard the State's
motion. The prosecutor argued that a fact finder could not
conclude that defendant had had a lawful prescription if she
could not say when and by whom the prescription had issued.
Defendant's attorney contended that the prosecutor's
argument went to the weight to be given defendant's
statements, not their admissibility. She added that defendant
should be allowed to present her defense.
8 In an offer of proof, defendant's attorney stated that
defendant would testify "that a doctor did give her a
valid prescription, she is unable to remember which doctor,
because she's had a lot of medical procedures in the past
few years." The attorney added that defendant could not
provide a name "but she [could] certainly say that it
was not unlawfully obtained, that she was given a
prescription from a doctor." The court asked whether the
foregoing would be sufficient to shift the burden of proof.
Defendant's attorney responded that she would have
defendant testify to "where she's lived, *** how
many different procedures she's had, in what span of
time, you know, she can just give a little bit of background
as to her medical history." The court observed that it
would be "very easy" for defendant to say that she
had had a prescription but could not remember the doctor or
the date of issuance, but then the State would have been
"tendered no discovery, no doctor name, no prescription,
no [']is it Walgreens' on Roosevelt Road.['] I
mean nothing. So they can't rebut it."
Defendant's attorney reiterated that defendant could
testify about her numerous medical procedures. But in
response to the court's question "[h]as that all
been disclosed?" she said, "No, *** because
we're not going to get into the details of it." The
court noted that the undisclosed information was
defendant's explanation of why she could not remember the
doctor or the date of the prescription.
9 The court also was troubled by the possibility that, if it
denied the State's motion, defendant would testify that
"all of a sudden she remembers the name of the doctor or
*** there's information that the State never had."
Defendant's attorney stated that she had spoken with
defendant and that defendant did not remember that
information. She reassured the court that she would not be
"getting into any specifics" and did not believe
that defendant would testify to any specifics.
10 The prosecutor argued that the shortcomings in
defendant's proposed testimony went not merely to its
weight but to whether the matters were within her personal
knowledge; otherwise, testimony about the prescription would
be inadmissible hearsay. Further, if defendant were to
testify about her medical procedures and residence changes,
then she would have to disclose that information to the
State. Defendant's attorney noted that defendant had had
"so many different doctors and ER visits that she [did
not] even know." Although the attorney "would
[have] love[d] to have been able to give the State a few
different doctors to talk to, " she was "not in
that position." The prosecutor responded that for this
very reason the State would be put into an impossible
position by defendant's testimony: it would require the
State "to go send out subpoenas to every pharmacy we
could possibly imagine in order to rebut this defense."
11 The court stated that allowing defendant to testify to
having had a prescription issued by a named doctor on a
specific date might not violate the hearsay rule, but that
allowing her mere testimony that she had had a prescription,
without giving the State any basis for that testimony, would
be improper. In the court's view, defendant had not
tendered the State sufficient information to place her within
the exemption. The court concluded, "I don't think
that in this situation it would be permissible, the State