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People v. Schoo

OPINION FILED DECEMBER 2, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GARY SCHOO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. ALFRED WOODWARD, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Defendant, Gary Schoo, was found guilty in a bench trial of the delivery of less than 30 grams of a substance containing cocaine (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(b)) and was sentenced to the penitentiary for a term of 18 to 54 months imprisonment.

On appeal he contends (1) that the witness who testified for the State identifying a substance as containing cocaine was not qualified as an expert; (2) that the State failed to establish a proper chain of possession of the substance allegedly containing cocaine; and (3) that he was not tried within 160 days after his demand for trial and is entitled to discharge.

The transactions upon which this conviction is based occurred on January 28, 1975, in Roselle, Illinois, when defendant approached Steve Weber, an agent of the Metropolitan Narcotics Enforcement Group, and gave him a clear plastic bag containing a white powder and received $1,800 in cash from Weber. Defendant was then arrested and, after processing at the Roselle Police Department, was released on bail.

The plastic bag and contents were locked in an evidence room and on February 20, 1975, were transported to the laboratory of the Illinois Bureau of Identification in Joliet, Illinois, by laboratory technician John Wagner. Wagner arrived at the crime lab at 5:45 a.m. and was instructed by the person on duty to lock the evidence in a locker there, which he did; he then turned the key over to the laboratory attendant. Later that morning at 9:30 a.m. a supervisor removed the evidence from the locker and it was subsequently examined in the laboratory by Kenneth Raiser, a criminalist for the Illinois Bureau of Investigation, who testified in the trial as to its contents.

On March 12, 1975, the case was set for preliminary hearing in the Circuit Court of Du Page County and defendant, who was on bail, appeared with his counsel at the appointed time. Defendant's attorney stated, "Defendant is ready" when the case was called, but the State requested and was granted a continuance of the hearing to April 8, 1975, because the laboratory report of the substance delivered by defendant was not yet available. Again, on April 8, 1975, defendant appeared with his attorney and, again, the People requested an additional continuance because the report was still not available. Defendant, by his attorney, resisted the continuance stating, "I do object to this motion, your Honor, and we're ready." The court then denied the State a further continuance and granted defendant's motion to dismiss the complaint against him and he was discharged.

In July 1975 the grand jury of Du Page County returned an indictment against defendant on the present charge based upon the same transaction we have described. He was tried before the court and convicted on November 3, 1975, that being more than 160 days after his earlier court appearances in which he had stated he was ready.

• 1, 2 The State contends in its brief that defendant has waived his claims of error by his failure to file any post-trial motion (either oral or written) as required by section 116-1(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 116-1(b)). The general rule is that such failure constitutes a waiver of those issues, now claimed to be trial error, which should have been first presented to the trial court for its review and possible correction thus avoiding an unnecessary appeal. (See People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856; People v. Irwin (1965), 32 Ill.2d 441, 207 N.E.2d 76; People v. Douthit (1977), 51 Ill. App.3d 751, 366 N.E.2d 950; People v. Hammond (1977), 48 Ill. App.3d 707, 362 N.E.2d 1361.) Although Supreme Court Rule 615(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 615(a)) provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court," the rule is not invocable in every case (People v. Killebrew (1973), 55 Ill.2d 337, 303 N.E.2d 377). We may similarly take notice of defects in the trial which were not preserved for review if the evidence is closely balanced, but the appellate court is not mandated to do so. People v. Stinnette (1977), 49 Ill. App.3d 134, 363 N.E.2d 945; People v. Harvey (1976), 41 Ill. App.3d 869, 354 N.E.2d 393.

• 3, 4 The evidence presented in this case was not closely balanced; defendant presented none to rebut that offered by the State. We have considered the qualifications of the expert witness who identified the product sold by defendant and the record demonstrates he possessed a degree in chemistry and had substantial training and experience in drug analysis, doing so on a full time basis at the laboratory of the Illinois Bureau of Identification. He was qualified by his skill, training and experience to express the opinion objected to by defendant. (See People v. Pruitt (1974), 16 Ill. App.3d 930, 307 N.E.2d 142, cert. denied (1974), 419 U.S. 968, 42 L.Ed.2d 184, 95 S.Ct. 232.) Similarly, we have considered defendant's contention regarding the chain of possession of the substance sold by defendant and find no evidence of substitution, alteration, tampering or misidentification. (See People v. Kristovich (1975), 32 Ill. App.3d 979, 336 N.E.2d 772.) In these circumstances we find these claims of error to have been waived by defendant and will not consider them further.

Defendant's final contention, that he was deprived of his constitutional and statutory right to a speedy trial, after his demand for trial, will be considered. This issue was first presented to the trial court by defendant's written motion for discharge made prior to trial and, after consideration, was denied by the court. For that reason we will not consider the issue waived, in this case, even though defendant failed to preserve it by filing a post-trial motion. See People v. Morgan (1976), 44 Ill. App.3d 459, 358 N.E.2d 280; People v. Johnson (1973), 14 Ill. App.3d 254, 302 N.E.2d 430.

Section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5) provides as follows:

"§ 103-5 Speedy Trial.)

(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial * * *.

(d) Every person not tried in accordance with subsections (a), (b) and (c) of this Section shall be discharged from custody or released from the ...


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