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People v. Perine

OPINION FILED MARCH 21, 1980.

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

v.

CHARLES PERINE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROMIE PALMER, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a bench trial, defendant was convicted of possession of 30 grams or more of a substance containing heroin (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(a)), and was sentenced to nine years in the penitentiary. On appeal, he raises the following issues: (1) that the State did not prove beyond a reasonable doubt that the substance he allegedly possessed was heroin; and (2) that sections 8(b) and (d) of the Dangerous Drug Abuse Act are unconstitutional in that they violate the equal protection and due process clauses respectively of the United States and Illinois constitutions.

On April 29, 1976, at about 1:30 p.m., Chicago police officer Thomas Riley arrived at 18th and Canalport, Chicago, after receiving a call from an undercover officer regarding a purchase of narcotics that was to take place at 2:30 that morning. At about 2:15 a.m., a black Camero with two occupants pulled up, and a man whom Riley knew to be Charles Leak emerged from the car. Leak met with another man in the parking lot at the corner of 18th and Canalport, and the two had a brief conversation. During this conversation, the unidentified man handed something to Leak. Leak soon returned to the car, and as he entered, Riley recognized defendant as the passenger. They drove away, and other police surveillance vehicles followed them to 8409 S. Vincennes, Chicago.

Riley rejoined the other police officers at that address at about 2:30 a.m. When he identified himself to the two men in the Camero, defendant threw something to the ground and ran into a nearby building. Riley picked up a 2" x 4" clear plastic bag that defendant dropped. It contained brown powder which a field test indicated to be heroin. Riley arrested defendant in the hallway of the building. Riley and other police officers then initialed the plastic bag, took it to the crime lab, and placed it in an evidence envelope. The envelope was sealed, initialed, taped closed, given an inventory number and placed in a safe.

At trial, it was stipulated that George Halko, a chemist from the Chicago police department, analyzed the contents of a clear bag containing 66.94 grams of a brown substance which was submitted to the crime lab on April 29, 1976, by Riley and two other police officers, and inventoried under No. 379528. Halko removed a sealed evidence envelope under No. 379528 from the safe which contained the signature of Riley, among others, on the sealed flap of the unopened envelope. From the envelope, he removed a 2" x 4" plastic bag containing a brown powder, weighing 66.94 grams, which he chemically tested and found to be heroin.

It was further stipulated that the substance removed from the evidence envelope by Halko was the same substance recovered by Riley on April 29, 1976, and that there was an unbroken chain of custody.

Defendant testified that on the evening of April 28, 1976, he and his girlfriend visited Leak and his wife, who resided at 83rd and Vincennes, Chicago. Later that evening, he and Leak took a ride, but he did not ask about a specific destination, because he was spending the entire evening with Leak and his wife. They arrived at 18th and Canalport at 2:30 a.m., and Leak told defendant he had some business to take care of. Defendant waited in the car, unaware of what Leak was doing. After about 30 minutes, Leak returned, but did not appear to be carrying anything. The two did not discuss what had just transpired as they returned to Leak's apartment.

Later, as they got out of the car at 84th and Vincennes, Leak said, "Here come the police," and put something into defendant's pocket. Leak told him to get rid of it, and defendant threw it on the sidewalk as he walked toward the building. Defendant did not know what Leak gave him, but "figured it was some kind of contraband." He never looked at the packet that Leak put in his pocket.

OPINION

Defendant contends that the State failed to prove beyond a reasonable doubt that the substance he allegedly possessed was in fact, heroin, and that his conviction occurred in violation of his constitutional right to due process of law. (U.S. Const., amend. XIV; Ill. Const. 1970, art. 1, § 2.) Defendant's contention is based upon alleged discrepancies contained in the stipulation entered into by the parties. Because two different inventory numbers (Nos. 379582 and 379528) in the stipulation refer to the packet of heroin analyzed by the police chemist, defendant asserts that two packets existed and that the stipulation fails to show which, if either, of the packets was recovered from defendant by the police.

• 1 When contraband is sought to be introduced, the State must show a sufficient chain of custody to negate any possibility of tampering or substitution. (People v. Hanson (1977), 44 Ill. App.3d 977, 359 N.E.2d 188.) In the instant case, the record proves in its entirety that the substance obtained from defendant was the same untampered substance that was later tested and found to be heroin. Officer Riley recovered only one plastic bag containing brown powder from defendant on April 29, 1976. He then placed that plastic bag in an evidence envelope, initialed the envelope, inventoried it, and put it in the crime lab safe. The stipulation indicates that the police chemist later removed a single sealed evidence envelope from the safe bearing Officer Riley's initials over the flap of the unopened envelope. The record contains no indication of any tampering with the substance or substitution between the packet taken from defendant and the one later analyzed by the chemist.

The only support for defendant's assertion in the entire record is the reversal of the last two digits in the six-digit inventory number referred to in the stipulation. Contained in that same stipulation, however, is the statement that the substance tested by the chemist was the same substance recovered by Officer Riley on April 29, 1976, and that there was an unbroken chain of custody. Cases cited by defendant are distinguishable from the instant case because in those cases there was no showing of a direct link between defendant and the contraband. (People v. Maurice (1964), 31 Ill.2d 456, 202 N.E.2d 480; People v. Resketo (1972), 3 Ill. App.3d 633, 279 N.E.2d 432.) Moreover, in the present case, defendant never objected to the alleged insufficiency of the chain of possession as recited in the stipulation. Instead, defense counsel's trial strategy was to deny that defendant "knowingly" possessed the substance as required by statute. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(a).) The alleged discrepancy in inventory numbers was apparently noticed only after the transcript was prepared. This lends support to the State's contention that the difference between the numbers was more likely the result of an error in typing or transcription than an indication of more than one packet of heroin.

Based upon the foregoing reasons, we find that the State proved beyond a reasonable doubt that the substance taken from defendant was the same substance tested by the chemist and proven to be heroin.

Defendant also contends that section 8(b) of the Dangerous Drug Abuse Act (hereinafter the Act) (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 120.8(b)) violates the equal protection clause of the United States and Illinois constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2), and that section 120.8(d) of the Act violates the due process clause of the United ...


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