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People v. Grayson





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. SULSKI, Judge, presiding.


Rehearing denied November 10, 1980.

John L. Grayson (hereinafter defendant) brings this appeal from a conviction for possession of a controlled substance after a jury trial and a sentence of four years. On appeal he urges that: (1) the State did not establish the chain of custody of a bag of heroin allegedly recovered from him; (2) he was not proved guilty beyond a reasonable doubt; and (3) he was denied a fair trial because of the improper and prejudicial statements made by the prosecutor during his closing argument.

We affirm.

The following testimony adduced at the defendant's trial is pertinent to the issues raised on appeal. Police officer Robert Gerwig, a tactical unit officer, testified that he and his partner, Michael Cronin, were conducting a theft investigation and surveillance at 4213 West Monroe on November 15, 1977, at approximately 8:20 p.m. The officers were conducting their surveillance from a vacant first-floor apartment of that building when the defendant entered the building and went up to the second floor. After Grayson went upstairs, Gerwig left the first-floor apartment and crouched behind a pillar so that he could observe Grayson's actions. From this vantage point, he saw the defendant knock on the door of the second-floor apartment and when the door was opened ask for a $15 bag of dope. The person inside the apartment disappeared but returned in a few minutes at which time the two parties exchanged something. After the exchange, Grayson began to leave the building. When he reached the first floor, however, the officers identified themselves. According to Gerwig, at this time the defendant threw his hands into the air and as he did a clear plastic bag flew into the air and landed on the stairs between the first and second floors. Gerwig retrieved the bag and observed that it contained a tan powder similar to heroin. Grayson was arrested. Subsequently, others present in the second-floor apartment were arrested. The stolen camera was recovered at this time.

On cross-examination, Gerwig acknowledged that his police report did not state that Grayson made an exchange at the second-floor apartment. He also stated that it was his and his partner's belief that the Mason brothers who lived in the second-floor apartment were drug dealers and that they wanted to get them. However, he denied asking Grayson to help him "get" Mason or knowing that Grayson was on parole.

Officer Michael Cronin corroborated Gerwig's testimony with the following additional testimony. Cronin testified that he gave the defendant his Miranda rights after his arrest and searched him. After the arrest, the defendant was asked where he "copped the heroin" to determine the level of his cooperation. Shortly after Grayson's arrest, a second man was arrested as he left the Mason apartment. After this arrest, the police arrested the remaining occupants of the apartment and recovered 31 bags of heroin packaged similarly to the bag retrieved from Grayson. According to Cronin, the bag taken from Grayson was held by Gerwig until it was inventoried with the other bags by Cronin at the police station. Its inventory number was 513461. Cronin also testified that there was some discussion at the station concerning the fact that Grayson could talk to the State's Attorney if he changed his mind about testifying about Robert Turner. The record fails to disclose Turner's identity. Cronin denied threatening the defendant by telling him he knew he was on parole and that he would put a bag on him if he didn't help him and his partner get Jack Mason.

Christine Provost, a chemist employed by the Chicago police department, stated that on August 7, 1978, she received a plastic bag which contained evidence folder number 513461 containing a small plastic bag wrapped in tape with powder in it. After weighing the tan powder and conducting a variety of tests on it, she concluded that the tan powder showed the presence of heroin. The substance, she noted, had originally been examined by Robert McMillan, a chemist formerly employed by the department.

Grayson testified in his own behalf that he had been a heroin addict in 1974-1975, was convicted of robbery in 1975 for which he spent three years in the penitentiary, and used heroin after his release in 1977. On November 15, 1977, he went to the second-floor apartment at 4213 West Monroe to see either "Mukie" or Jack Mason. He planned to trade a bottle of pills containing "Tees and Blues" for a bag of heroin, however, when he got to the apartment Jack Mason told him that he did not have enough to trade. Grayson had bought drugs from Mason once in the past but had paid cash for them. As he began walking down the stairs, Officers Gerwig and Cronin appeared. He tried to run upstairs, but Cronin pushed him against the wall and held him by the throat. Gerwig covered his mouth and told him not to scream or swallow. At the time of his arrest he was in possession of the pills and a dagger and these items were taken from him when he was searched.

After his arrest Grayson was taken into the first-floor apartment where he was urged to incriminate Mason. Cronin told Gerwig to go outside and look for narcotics because he knew the defendant had dropped some. After the defendant was arrested, a man named Gil Horton was also arrested. During the arrest of the second-floor apartment's occupants some time later, Grayson and Horton were kept in the kitchen of the second-floor apartment. While in that apartment, Grayson saw two policewomen search two women and recover 47 bags of heroin. One of the policewomen handed one of the bags to Cronin. Grayson denied having gotten any heroin from Jack Mason on November 15, 1977, or throwing a bag of heroin into the air upon being confronted by the two police officers. On rebuttal, Cronin denied having recovered a dagger from the defendant.

After hearing all of the evidence, the jury returned a verdict of guilty. On November 21, 1978, after the defendant's post-trial motion was denied, he was sentenced to four years' imprisonment in the Illinois Department of Corrections. A timely notice of appeal was filed.

The defendant initially argues that introduction of a bag containing heroin allegedly recovered from him was error because the State failed to establish a sufficient chain of custody for the heroin. His principal contention is that, as the chemist who originally analyzed the substance is no longer employed by the Chicago police department and his whereabouts unexplained, it follows that the chain of custody was not established and that, therefore, he is entitled to a discharge. We disagree.

• 1 Drugs may be admitted into evidence where the State negates the possibility of tampering or substitution. (People v. Perine (1980), 82 Ill. App.3d 610, 402 N.E.2d 847; People v. Hanson (1977), 44 Ill. App.3d 977, 359 N.E.2d 188.) The State provides the necessary foundation for the admission of such evidence either where the drug is identified by a witness or where the chain of possession is established. (People v. Greer (1963), 28 Ill.2d 107, 190 N.E.2d 742; People v. Beverly (1977), 55 Ill. App.3d 872, 371 N.E.2d 148; People v. Smith (1974), 21 Ill. App.3d 366, 316 N.E.2d 170.) In either case, the State need not exclude all possibility that the evidence may have been tampered with, but rather, only that there is a reasonable probability that the evidence has not been tampered with or substituted. People v. Lewis (1977), 52 Ill. App.3d 477, 367 N.E.2d 710; People v. Marquis (1974), 24 Ill. App.3d 653, 321 N.E.2d 480; see People v. Madden (1978), 57 Ill. App.3d 107, 372 N.E.2d 851.

Officer Cronin testified that he placed the bag containing the tan powder into an evidence folder, placed an inventory number on it, affixed his signature to the folder, sealed it, and then placed it into a safe at the 11th District Tactical Station. At trial he identified the evidence folder as the same one which contained the bag recovered from the defendant on the basis of its inventory number and his signature. However, neither he nor Officer Gerwig could identify the bag as the one they recovered from the defendant. The chemist, Christine Provost, testified that she had received the sealed evidence folder with the instant inventory number from her superior for analysis. The signature and initials of the first chemist to analyze the substance, Robert McMillan, were on the evidence folder. She could not remember whether his initials were also on the bag. She testified that, after she conducted tests on ...

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