Appeal from the Circuit Court of Lake County; the Hon. William
D. Block, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
John Irpino, defendant, was convicted after a bench trial in Lake County of the offense of unlawful possession of more than 30 grams of a controlled substance (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1402(a)(2)). He was sentenced to five years in the Department of Corrections. The defendant appeals from his conviction and sentence and raises two issues. First, he argues that the trial court erred in admitting into evidence People's group exhibit No. 1, which consisted of a police department manilla envelope in which a sandwich-sized plastic bag containing a white powdery substance allegedly recovered from between his legs. He contends that the state failed to establish that the contents of this exhibit were actually recovered between his legs rather than the similar bag of alleged cocaine recovered later from the trunk of his car and suppressed on fourth amendment grounds prior to trial, and failed to establish a sufficient chain of custody to dispel the possibility that the contents of this exhibit were subject to contamination, tampering, or alteration. Second, defendant argues that the trial court's imposition of a sentence of imprisonment violated his eighth amendment right to be protected against cruel and unusual punishment because he is a paraplegic requiring physical rehabilitative therapy unavailable in any Department of Corrections' facility.
Deerfield police officers Webb and Meyer arrested the defendant at approximately 4:30 a.m. on June 20, 1981, after finding him passed out or asleep in the driver's seat of a car stopped 40 feet north of a stop sign in the northbound lane of Apple Tree Lane where it intersects with Arbor Vitae. The car was in drive position with the motor running and the lights on; defendant's foot was on the brake pedal. At that time, a sandwich-sized plastic bag containing a white powdery substance was recovered from between the defendant's legs and was retained by Officer Webb who brought it to the police station and locked it in an empty gun locker.
Later, at the police station where the defendant and his car were brought, Officer Webb and Agent Ross found another similar bag containing a similar substance in the trunk of the defendant's car. On the way to the records room with this second bag, Officer Webb retrieved the first bag which he had earlier recovered. He placed both of these bags on a desk in the records room. The bag found in the trunk of the defendant's car was subsequently suppressed on motion of the defendant and with the State's agreement for a reason not shown in this record. At trial, the defendant objected to the State's attempt to introduce People's group exhibit No. 1, the bag and substance allegedly recovered from between his legs, on the grounds that the State failed to establish sufficient foundation that the contents in this exhibit were indeed recovered from between his legs and not from the trunk of his car, and because of "mysterious" staples and tape on the top of the evidence envelope. Since the basis of the defendant's argument concentrates on contradictions and "untruths" found in the record, the testimony of each officer must be detailed.
Officer Webb testified on direct examination about his recovery of the first bag and its placement and retention in the gun locker, that Agent Ross conducted a field test on the contents of this bag at around 6:40 a.m., that after this test, he relocked the bag in the gun locker and then talked to the defendant about the charges against him. Webb and Ross then searched the car, retrieved the first bag, took it to the records area, and began work on the report and on inventorying the evidence. The bag was inventoried on a form, marked, and placed inside a manilla envelope, which was then sealed and marked, identified at trial as People's exhibit No. 1 for identification. He had written his initials and the date on this envelope. Agent Ross had written her initials and the police case number and exhibit number on it and placed an inventory sticker on the other side which she earlier had filled out. He noted that the envelope was different from when he had last seen it in that there was writing on the corner by someone else on the side where the sticker had been placed and that the top and bottom of the envelope were sealed with staples and tape. Officer Webb continued that the sealed envelope was then given to Sergeant Skarbala for transportation to the crime lab.
On cross-examination, Officer Webb noted that the envelope was marked police exhibit No. 2. He further stated that no markings were on the bag when it was recovered from the defendant's lap and he could not recall whether he placed any marking on it at that time. At that point, defense counsel then asked him about the recovery of the second bag from the trunk of the defendant's car. Officer Webb admitted that prior to inventorying and identifying the evidence, he was in simultaneous possession of both bags. Nothing in his inventory slip or police report specified where police exhibits Nos. 1 and 2 were recovered. People's group exhibit No. 1 for identification was then opened in court and it was noted that the bag had some writing on it: the date of recovery, the policy case number, Officer Webb's initials, agent Ross' initials, and the notation that this was police exhibit No. 2. He then stated that both bags were before him at a time when neither had been marked.
On redirect examination, Officer Webb explained that after finding the second bag in the trunk in the garage, he held it in his left hand with a large amount of cash ($39,000) he had found and while proceeding to the records room, unlocked the gun locker, took out the first bag and held it in his right hand. In the records room, he placed the first bag on the right side of the desk and the second bag on the left side of the desk. Agent Ross began to write out the envelope labels and placed the bag on the left (second bag) into the first envelope, marked it exhibit No. 1 and sealed it. Then she placed the first bag recovered into another envelope and marked it exhibit No. 2. He identified at trial People's group exhibit No. 2 for identification as police exhibit No. 1. He explained that this envelope was in substantially the same condition as when he had last seen it except that there were staples and tape sealing the bottom and top of the envelope and writing on one corner which he did not recognize. This envelope was opened in court and it was noted that the bag was marked with the police case number and exhibit number and his initials. It was further noted that Officer Meyer had also written on this bag but that Agent Ross had not. He concluded his redirect examination by stating that at all times he was aware of which bag was recovered from each location.
On re-cross-examination, Officer Webb admitted that although he earlier said that he had marked police exhibit No. 1, Ross had marked it. He explained that Officer Meyer was in the same room inventorying the $39,000 in cash recovered from the trunk of the defendant's car. He further testified that police exhibit No. 2 (first bag) had been marked as being recovered at 6:45 a.m. and that police exhibit No. 1 was marked as being recovered at 4:27 a.m.
Finally, on re-direct examination, Officer Webb testified that the bags were closed and that nothing spilled out or into one another.
Agent Ross testified that she searched the defendant's car with Officer Webb in the garage, that Webb took the plastic bag found in the trunk and on the way to the records room retrieved the first bag, which she had earlier field tested, brought both of the bags to the records room and placed them on a table. She then filled out a sticker with the pertinent information for the first bag recovered, stuck it on a manilla envelope, and, along with Officer Webb, marked the bag with the police case number and exhibit number, their initials, and the date. She then placed the bag in the envelope and sealed it with staples covered by tape on the top of the envelope. She did not write anything on this seal. She identified People's group exhibit No. 1 for identification as this evidence. She wrote the time recovered based upon information received from Officer Webb. She then repeated the same process with the second plastic bag and identified People's group exhibit No. 2 for identification as this evidence.
On cross-examination, she testified that the first bag recovered was on the right side of the desk and that Officer Webb had handed it to her, she did not reach for it. She explained that she marked it police exhibit No. 2 because she thought it was smaller than the other bag. She said that she made an error in writing the times when each bag was recovered. She testified that both bags were identical, but then when asked whether one of the bags had been in a double bag, she stated that she could not recall. People's exhibit No. 2 for identification contained a plastic bag filled with a white powdery substance inside of another plastic bag.
Sergeant Skarbala testified, over defendant's continuing objection, about testimony concerning the evidence that was suppressed, about his transportation of the two exhibits to the crime lab. He stated that the envelopes were sealed when he received them and that now they were stapled and taped and marked on the ends. He said that there were no staples on the exhibits when he received them from Officer Webb. He handed these envelopes to Irwin Haviland of the crime lab who wrote on the corners of the envelopes upon receipt.
Irvin Haviland did not testify at trial but Michael Johnson, the crime lab's chief chemist, testified, over defendant's continuing objection, that he removed the envelopes from the narcotics locked locker, that he tested the substances in each bag and determined that People's group exhibit No. 1 contained 119.35 grams of cocaine and that People's group exhibit No. 2 contained 119.18 grams of cocaine, then replaced the bags in the manilla envelopes and sealed the bottoms with staples, tape, and his writing. He testified that he did not put any staples on the top of the envelopes. People's group exhibit No. 2 was in a double plastic bag when he removed it from the envelope. He further stated that there are two keys to the narcotics locker and that he keeps his key in the laboratory. The staples and tape on the top of the envelopes were present when he removed them from the narcotics locker.
The defendant objected to the introduction of these exhibits into evidence, but after argument, the court admitted both of them into evidence. Defendant then moved that the testimony concerning the analysis of the substances be stricken but the court took that question with the final question in the case. The State then rested and defendant moved for a directed finding which the court denied. The defense then rested. After argument, the trial judge stated that he was convinced beyond a reasonable doubt that People's group exhibit No. 1 was the bag recovered from between the defendant's legs and granted the defendant's motion to strike the rest of the testimony ...