APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. SCHREIER, Judge, presiding.
MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:
Defendant appeals from his conviction in a jury trial of the offense of delivery of a controlled substance (less than 30 grams of a substance containing heroin) in violation of section 401(b) (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(b)). He was sentenced to a term of 2 1/2 to 7 1/2 years in the Department of Corrections.
Defendant's sole contention upon appeal is that the State failed to establish the balloon and the substance containing heroin introduced into evidence against him were the same as those allegedly purchased from him by an undercover narcotics investigator.
The pertinent facts are uncontested. Three Chicago police officers, Terrence O'Connor, Thomas Neustrom, and Phillip Cline, were working in plain clothes as a narcotics investigation team on November 9, 1976. Officer O'Connor was the undercover buying agent and Neustrom and Cline provided surveillance of the transaction. According to the officers' testimony, O'Connor alone approached a street corner near 1356 North Campbell, Chicago, where he engaged defendant in a short conversation. Neustrom and Cline observed defendant put his hand to his mouth and hand something to O'Connor. They saw O'Connor reach into his pocket and hand some paper or currency to defendant.
O'Connor testified that defendant offered to sell him narcotics and he agreed to purchase one bag for $30. According to O'Connor, defendant reached into his mouth and removed a blue balloon with a yellow stripe or mark. O'Connor paid defendant and placed the balloon in his empty coat pocket. Officer O'Connor then left defendant and was subsequently picked up by Neustrom and Cline.
O'Connor removed the balloon from his coat pocket and handed it to Cline. Investigator Cline opened the balloon and found a piece of clear plastic around a tan powder. Cline conducted a field test on the tan powder which proved positive indicating the presence of an opium derivative. Upon completing the field test, Cline returned the balloon containing the wrapped tan powder to his empty shirt pocket. The officers testified that they carried no narcotics or suspect narcotics before the purchase from defendant and that no other narcotics purchases were made that day.
At about 3:30 that afternoon, the officers returned to police headquarters where Cline gave Neustrom the balloon and its contents. Neustrom placed the balloon in a manilla evidence envelope, and wrote identifying information and his signature on the outside of the envelope. At this point, the officers took the evidence packet to the crime laboratory, also located in the police headquarters building, and allowed the crime lab attendant to visually examine its contents. In progression, Neustrom sealed the envelope, initialed it, scotch taped over both his initials and the sealed flap of the envelope, and then surrendered the sealed evidence envelope to the crime lab attendant.
Officer Neustrom inventoried this evidence envelope as one blue balloon, and as further containing a plastic bag of tan powder. All three officers had sufficient opportunity to view the balloon and all identified it as blue or blue with a yellow mark or stripe.
On November 12, 1976, Linda O'Bannon, chemist for the Chicago Police Department, conducted chemical tests on the substance within the evidence envelope. She testified that the envelope was sealed when she received it.
Before O'Bannon opened the envelope, she recorded certain identifying information and signed and initialed it. O'Bannon opened the envelope opposite the end the officers had sealed and removed a green balloon containing a tan powder wrapped in a clear plastic packet. She conducted various tests on the tan powder, maintaining sole possession of the evidence during her testing. Based on these tests her opinion was that the substance tested was heroin a controlled substance. Upon completing these tests, O'Bannon replaced the tan powder, plastic packet and balloon into the evidence envelope as before. She then stapled shut the opening, scotch taped over the staples and placed her initials on both sides of the tape. Further, she placed the envelope in a clear plastic recovered property bag, heat sealed and signed it.
At all times not accounted for above, the evidence packet was stored in a police safe or vault. Officer O'Connor retrieved the evidence from the vault for trial.
At trial, a green balloon rather than a blue or blue and yellow balloon was found in the evidence envelope. None of the officers could identify the green balloon or the tan powder as definitively being the blue and yellow balloon received from defendant. However, all three officers testified the balloon was similar in size and shape to the one defendant had sold and Neustrom identified the evidence envelope as unchanged from when he had submitted it to the crime lab. When questioned by defense counsel, police chemist O'Bannon minimized the importance of the color variance:
"Q. As a scientist didn't you think there was something wrong with the envelope when it said a blue balloon, and the envelope had a green balloon?
A. That happens frequently. Green is confused with blue, red is confused with orange. As long as the numerical contents agreed, one balloon with clear packet. If there were two balloons then I would have to send ...