People v. Prather

• Decision Date: 29 October 2012
• Docket Number: No. 2–11–1104.,2–11–1104.
• Citation: 979 N.E.2d 540
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellant, v. Clarence W. PRATHER, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

979 N.E.2d 540

The PEOPLE of the State of Illinois, Plaintiff–Appellant,

v.Clarence W. PRATHER, Defendant–Appellee.

No. 2–11–1104.

Appellate Court of Illinois, Second District.

Oct. 29, 2012.

Henry S. Dixon, State's Atty., Lawrence M. Bauer and Marshall M. Stevens, State‘s Attys. Appellate Prosecutor's Office, Dixon, IL, for the People.

Thomas A. Lilien and Steven E. Wiltgen, State's Appellate Defender's Office, Elgin, IL, for appellee.

Justice SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 In this case, the State charged the defendant, Clarence Prather, with committing an aggravated battery on a victim whom the defendant knew to be pregnant ( 720 ILCS 5/12–4(b)(11) (West 2010)). Prior to trial, the State filed a motion in limine seeking permission for the alleged victim (B.R.) to testify that she had used a home pregnancy test kit and had shown the positive result to the defendant. The State sought to introduce this testimony as evidence that the defendant was aware that B.R. was pregnant, not as evidence that B.R. was in fact pregnant. The trial court held that, absent introduction of the test kit itself, the testimony would be unfairly prejudicial. It stated as a further basis for the bar that it did not deem a home pregnancy test to be acceptable as scientific evidence under the standard of Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The State filed a certificate of impairment and now appeals. We reverse and remand.

¶ 2 BACKGROUND

¶ 3 The State filed a five-count information against the defendant: two counts of aggravated battery (victim pregnant); one count of obstructing justice ( 720 ILCS 5/31–4(a) (West 2010)); and two counts of domestic battery (family or household member) ( 720 ILCS 5/12–3.2(a)(1) (West 2010)). All of these counts related to the defendant's alleged assault on B.R. on May 31, 2011. Prior to trial, the State filed a motion in limine seeking to admit B.R.'s testimony that, before the battery took place on May 31, 2011, she used a home pregnancy test that indicated that she was pregnant, and she "showed the result of the test" to the defendant. The State asked that the court admit "the result of the home pregnancy test" as nonhearsay to show that the defendant was aware that there was a substantial probability that the victim was pregnant.

¶ 4 The court held a hearing on all motions in limine on November 1, 2011. The court initially assumed that the State was seeking to admit the test device as an exhibit. The State clarified that it was seeking to use B.R.'s testimony concerning the test. The court then asked if a proper foundation existed for that testimony.

¶ 5 The defendant argued that, even if the State were using the testimony to prove notice, there was indeed a problem with the foundation for the testimony and that, even beyond establishing that B.R. used the test properly, the State would have to validate the technology of the device under Frye standards. The State argued that any doubts about B.R.'s testimony would go to the testimony's weight, not its admissibility, and stated that it would agree to a limiting instruction informing the jurors that they could consider B.R.'s testimony only as evidence of notice to the defendant that B.R. was pregnant, not as evidence that she was actually pregnant. The court reserved ruling and asked the parties to present case law, stating that it "struggle[d] here with where a physical item is relied on for hearsay purposes and the weight that a jury might assign to that without delving into the issues [of scientific reliability] that [the defendant] raised."

¶ 6 The next day, when the hearing resumed, the court raised a question as to whether the issue was one of hearsay or was a different evidentiary issue:

"I had some concerns over whether or not * * * it was actually hearsay or evidentiary [sic ] issue and I believe if I recall correctly your argument was that you wished to have testimony introduced that the victim either showed and/or told the defendant the results of the test, but that my indication was that absent an evidentiary basis for that, that, that I was seriously concerned about whether that hearsay statement should be allowed * * *."

The court told defense counsel that "I know you argued as I've just stated that there's some concern about whether or not it, in fact, is a hearsay statement subject to that kind of admission." Defense counsel responded:

"I agreed with the Court at the time and took it beyond the initial foundation to go back to the fact that it's a scientific based concept. That without foundation as to the science that goes into it and the foundation as to whether or not the person even followed the instructions and in applying that science I think it's inadmissible based on the lack of foundation."

¶ 7 The court noted that the State, to show the aggravating circumstance for the battery, had to prove that the defendant was aware that B.R. was pregnant. The State agreed that it needed to prove this, and reaffirmed that it wanted to use the testimony to prove the defendant's awareness of the pregnancy, not to prove the existence of the pregnancy. The court asked, "What's the difference between the two?" The State replied:

"If we were admitting it to prove * * * the matter asserted, then it would be hearsay, but since it's only being used * * * for * * * notice to the defendant, then the jury can consider it only to the extent of the knowledge that the defendant had prior to committing the battery * * *."

The court then asked:

"[W]hat you're asking me to authorize is for that element of the case to be proven by a hearsay statement instead of producing the actual item that has scientific value as evidence, am I correct?"

The State responded that it was not offering B.R.'s statement for the truth of the matter asserted, so the testimony would not be hearsay. The court next asked:

"You're trying to prove that part of your case by a statement, not the actual physical item that the woman had in her hand that she alleges that he saw. Am I correct?"

The State responded that B.R.'s displaying of the test was notice to the defendant. The court further asked:

"[W]hat you're asking me to authorize is for a jury to hear testimony from [B.R.] that she showed this item to the defendant without having the item available for review by anyone in this case and you're going to then argue to the jury on that basis that [the defendant] knew or should have known that [B.R.] was expecting because of that statement. Am I correct?"

The State said that that was correct.

¶ 8 The court then ruled against the State:

"It's my opinion that absent the item itself which could be reviewed by the defendant and testified to by [B.R.] that the value of [B.R.'s] statement allegedly as nonhearsay or an exception to hearsay is extremely prejudicial and, in fact, would be insufficient by itself to justify a conviction of the defendant and for that reason I'm going to deny the request to allow that."

The court further stated that, in making this ruling, it was "incorporating concerns that [defense counsel] had about whether a Frye hearing" was necessary:

"I've not heard any testimony that anywhere in the State of Illinois or for that matter in the country that * * * a pregnancy test is actually allowed to be introduced in Court as evidence of pregnancy, and if that can't be done * * *, then it doesn't make sense to me that testimony about that should be allowed either."

The State filed a certificate of impairment and a notice of appeal.

¶ 9 II. ANALYSIS

¶ 10 On appeal, the State argues that the court erred in barring it from presenting B.R.'s testimony that she showed the defendant the positive result of the home pregnancy test, because it was not seeking to use the testimony to prove, as a matter of scientific fact, that B.R. was pregnant, but only to show that B.R. believed herself to be pregnant and communicated that fact to the defendant. The State contends that, because the evidence was being offered to show the defendant's knowledge or belief, not the fact of pregnancy, the State was not required to establish the scientific credentials of the test pursuant to Frye. The State also argues that there was no other valid basis for excluding the evidence.

¶ 11 We begin by briefly noting what is not at issue here, namely, whether the proffered testimony is hearsay. On appeal, neither party contends that the evidence is hearsay. Further, although the trial court sometimes referred to the proffered testimony as a "hearsay statement," its comments as a whole indicate that it used the phrase to emphasize the fact that the State wanted to introduce B.R.'s testimony about an object instead of offering the object itself into evidence, and not as a conclusion that the testimony actually was hearsay. The trial court did not make any finding that the evidence was inadmissible because it was hearsay. Indeed, evidence that is offered to show a person's knowledge or awareness of a circumstance and not to establish the truth of the circumstance is not hearsay. People v. Jenkins, 2012 IL App (2d) 091168, ¶ 17, 358 Ill.Dec. 209, 964 N.E.2d 1231. Here, the State concedes that it must also establish that B.R. actually was pregnant, and it has stated that it intends to offer different evidence as to that element. Thus, the only issue here is whether B.R.'s testimony about the test result, and her showing of that result to the defendant, was admissible solely as proof that the defendant had been given notice that B.R. was pregnant at the time he allegedly battered her. Because the State is not seeking to introduce the testimony for the truth of the matter allegedly "stated" by the test, i.e., to prove that B.R. was in fact pregnant, it is not excludable as hearsay. Id.

¶ 12 Moreover, we note that the State agreed that a limiting instruction should be given in connection with the testimony about the home pregnancy test result, advising the jury that the evidence was being...