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People v. Haiman

Court of Appeals of Illinois, Second District

June 8, 2018

KOREN M. HAIMAN, Defendant-Appellant.

          Appeal from the Circuit Court of Du Page County. No. 14-CF-2021 Honorable Daniel P. Guerin, Judge, Presiding.

          HUDSON 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.[1] 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." Id.

         ¶ 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 having ...

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