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People v. Ziehm

OPINION FILED DECEMBER 29, 1983.

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

v.

ROLAND ZIEHM III, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. Joseph McCarthy, Judge, presiding.

JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant, Roland Ziehm III, was found guilty of the delivery of 30 grams or more of a controlled substance (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1401(a)(2)) and was sentenced to 10 years' imprisonment. Defendant contends on appeal that (1) he was not proved guilty beyond a reasonable doubt due to defects in the chain of possession, (2) he was not proved guilty beyond a reasonable doubt because the State failed to prove defendant had knowledge of the amount delivered, and (3) the trial court abused its discretion by allowing testimony of a witness whose name was not previously disclosed by the State in its list of witnesses.

Taylor Strickland, a narcotics agent with the Kane County Task Force, testified that on October 6, 1981, he was involved in an ongoing drug investigation of the defendant. He and an informant, Billy West, went to a store located in Elgin to purchase a quantity of cocaine from the defendant. Agent Strickland had earlier purchased cocaine from the defendant on September 29 and September 30, 1981, after the informant had introduced Strickland to the defendant. West waited at another location while Strickland remained in his car waiting for the defendant. A short time later, the defendant arrived and got in the back seat of Strickland's car. Strickland asked the defendant if he had the coke, and defendant replied that he did. Defendant then gave Agent Strickland a plastic bag of white powder. Strickland asked him if it was good coke, and defendant stated that he thought so. Strickland then gave the arrest signal, and defendant was subsequently arrested by several other agents.

Agent Strickland took the bag into custody and transported it back to police headquarters. A field test conducted on the contents showed a negative result as to the presence of cocaine. He then sealed the bag with a clear plastic tape and marked it with a case number, exhibit number, his initials, and the date. Strickland placed the bag in an evidence envelope, sealed it with clear plastic tape, and wrote identifying information and his signature on the outside of the envelope. He then locked the evidence envelope, marked exhibit No. 3, along with the evidence envelopes from the earlier drug sales (Exhibits No. 1 and No. 2), in a police evidence locker. On October 13, 1981, he transported exhibits Nos. 1, 2 and 3 to the Maywood Crime Lab.

Wayne Fieroh, an agent of the Illinois Department of Law Enforcement, substantially corroborated Agent Strickland's testimony. He testified he was involved in the surveillance of the September 29, September 30 and October 6, 1981, drug transactions between Strickland and the defendant. On the two prior occasions, he testified he witnessed Agent Strickland conduct a field test on the contents. He and Strickland marked the plastic bag with the case number, exhibit number, their initials and the date, and then placed the bag in another plastic bag, again marked it with the case number, exhibit number, their initials and the date. They finally placed the bag in an evidence envelope, sealed it and marked their initials on the outside of the envelope as having witnessed Strickland's sealing of the envelope.

The parties stipulated that if Rick Paulas were called he would state that he received three sealed envelopes marked People's exhibits Nos. 1, 2, and 3 and the case number 81 C 3892 from Agent Strickland on October 13, 1981. After receiving these envelopes, Paulas placed his initials, the date, and the agency case number on all three envelopes, and then placed them in the locked vault of the Illinois Department of Law Enforcement Officers in Maywood, Illinois.

On October 21, 1981, Deborah Juricic, chemist for the Illinois Department of Law Enforcement, conducted chemical tests on the substances put within the three evidence envelopes. She testified that she received it from the lab vault on that day and it was sealed when she received it. Before Juricic opened each envelope, she wrote certain identifying information and her initials on each one. Juricic opened the envelope and removed a sealed plastic bag which she marked with the lab case number, the exhibit number, her initials and the date. She opened the bag and took out an inner plastic bag and observed a white powdery substance. In each case she weighed the exhibit: exhibit No. 1 weighed 6.9 grams, exhibit No. 2 weighed 11.2 grams, and exhibit No. 3 weighed 33.4 grams. She conducted various tests on these substances, maintaining sole possession of the evidence during her testing and keeping each exhibit separate. She completed her testing on exhibits Nos. 1 and 2 on October 21, 1981. Based on the tests she conducted on exhibits Nos. 1 and 2, her opinion was that the substance tested was 1-cocaine.

When she proceeded to test exhibit No. 3 On October 21, she observed an empty plastic bag and one sealed plastic bag with white powder inside. She did not run any tests on the empty bag. She was able to complete most of her testing on October 21, with the exception of one test performed by Carl Larson on October 23, 1981, which was necessary in order to determine whether the cocaine present was a derivative of the coca leaf or 1-cocaine, a controlled substance. Although she was able to conclude based on the tests she ran that the substance contained cocaine, based on Larson's test results and over the objection of the defense, she was allowed to give an opinion that the substance was a derivative of the coca leaf, a controlled substance.

Carl Larson, over defense counsel's objection that he was not previously listed as a State's witness, was allowed to testify with regard to the test he performed. He testified that he performed a test on a sealed vial he received from Juricic on October 23, 1981. He took the sample to the Joliet Crime Lab for a polarimeter test. The trial court had allowed the defense to interview Larson prior to his testimony during a court recess.

Defendant testified on his own behalf. He stated that on October 6, 1981, he delivered a plastic bag containing white powder to Taylor Strickland. Defendant stated that, through Billy West acting as a middle man, he sold cocaine to Strickland on two prior occasions. Defendant stated he purchased a bottle of mannitol, at West's direction, weighing 14.17 grams and saw the contents placed into a baggie by Billy West. Defendant testified that he had planned to trick Strickland by selling him purely mannitol rather than cocaine. Upon his arrest, defendant stated to the arresting officers that there was no cocaine in the bag. Defendant admitted that he believed he was selling cocaine to Strickland on the September 29 and September 30 deals but denied knowing that the contents of the bag on October 6 contained anything other than pure mannitol, which is not a controlled substance.

Evidence of the two prior sales on September 29 and September 30, 1981, was allowed by the trial court for the limited purpose of showing defendant's knowledge or intent regarding the October 6 transaction.

The jury found the defendant guilty of delivery of a controlled substance containing 30 grams or more of cocaine. The court thereafter sentenced defendant to 10 years' imprisonment. Defendant's amended post-trial motion was denied, and this appeal followed.

Defendant initially contends that he was not proved guilty beyond a reasonable doubt because there were defects in the chain of custody. Specifically, defendant maintains that the presence of an additional plastic bag in the evidence envelope of exhibit No. 3 and a greater amount of a substance than originally placed there by the defendant indicates that a reasonable possibility of tampering exists and, as such, requires a reversal of defendant's conviction.

• 1-3 While there must be an unbroken chain of possession between the article seized and the article analyzed for its admission into evidence (People v. Maurice (1964), 31 Ill.2d 456, 458; People v. Tribett (1981), 98 Ill. App.3d 663, 673), the foundation for the introduction of objects into evidence may be laid either through their identification by a witness or through establishment of a chain of custody. (People v. Greer (1963), 28 Ill.2d 107, 113; People v. Tribett (1981), 98 Ill. App.3d 663, 673.) In establishing a sufficient chain of possession, the State is not required to exclude all possibility of tampering. (People v. Marquis (1974), 24 Ill. App.3d 653, 662.) In the absence of any tangible suggestion of tampering, alteration, or ...


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