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People v. Whitfield

OPINION FILED JANUARY 28, 1986.

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

v.

DAVID W. WHITFIELD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Randolph County; the Hon. Jerry D. Flynn, Judge, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the circuit court of Randolph County, defendant, David Whitfield, was convicted on two counts of unlawful possession of a controlled substance (cocaine and heroin) with intent to deliver (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(c)) and one count of unlawful possession of more than 500 grams of cannabis with intent to deliver (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 705(e)). The circuit court entered judgment on the jury's verdict, and defendant now appeals. We affirm in part and vacate in part.

Defendant was employed as a guard at the Menard Correctional Center in Chester. On the morning of April 11, 1984, defendant drove to work at the prison from his home in East St. Louis. He parked his automobile in the prison lot and proceeded to the guard hall to report for duty. After signing in he was stopped by a superior officer and advised that he was to be strip-searched. The officer, Lieutenant Eggenmeyer, escorted defendant to a bathroom adjoining the guard hall where the search was to be conducted. Another lieutenant, named Kimmell, was present.

Defendant was apparently asked to empty his pockets and remove his clothes. From his pockets defendant removed seven cigarette packages. Two additional cigarette packages were later found in his jacket. All nine packages were sealed with cellophane, but upon closer inspection appeared to have previously been opened, were of somewhat different shape and firmness than regular cigarette packages, and bore tax stamps from the city of Chicago. The packages were opened by prison officials and eight of them were found to contain a green, leafy material. Two types of powder were found in the ninth. A field test of the leafy material showed it to be cannabis. This was subsequently confirmed through lab analysis done by the Bureau of Scientific Services of the Department of Law Enforcement. The Bureau's analysis established the powder to be cocaine and heroin.

Although defendant was told he would be strip-searched, he actually removed only his shoes and jacket. After the adulterated cigarette packages were discovered, the search ended. Defendant was then advised of his constitutional rights, signed a written waiver of those rights, and consented to giving a statement to the officer in charge of internal security at the prison, Captain Umbdenstock. Defendant was interviewed in Umbdenstock's office in the presence of Umbdenstock, Eggenmeyer, Kimmell, and Associate Warden Jim Buch. He admitted that he had been paid to bring the cigarette packages into the prison and had been directed to leave them in a vanity in the bathroom where he had been searched. That bathroom is accessible to prison inmates.

A Randolph County deputy sheriff arrived at the scene during the interview. The deputy placed defendant under arrest and transported him to the county jail. Umbdenstock visited defendant's jail cell with Deputy Sheriff Ewart Malott, learned that defendant had parked his car on the prison lot, and received permission from defendant to search it. Umbdenstock and Malott then obtained defendant's keys from the jail and returned to the prison, where they carried out a search of defendant's car. They found nearly three more full cartons of cigarettes in the car's trunk. Analysis by the Bureau of Scientific Services disclosed that these cartons contained approximately 645 grams of cannabis. The packages from defendant's jacket concealed an additional 193 grams of cannabis, slightly more than 1.3 grams of cocaine, and slightly more than eight grams of heroin.

Later in the afternoon of April 11, defendant was once again advised of his constitutional rights, signed a second written waiver of those rights, and voluntarily gave another statement to Captain Umbdenstock. Two special agents from the Department of Law Enforcement were also present. During this interview, defendant made various additional incriminating admissions, including that he had previously brought five cigarette packages containing contraband into the prison, for which he had been paid $500. Defendant further revealed that he had been paid $950 to bring in the cigarette packages he was carrying when arrested that morning.

On April 16, 1984, the State's Attorney for Randolph County filed a three-count criminal information against defendant arising from the events of April 11. Defendant moved to suppress the evidence obtained through the search of his person and automobile on the grounds that the search violated his rights under the fourth amendment to the United States Constitution. Defendant's motion was denied, and he was subsequently found guilty by the jury on all three counts.

• 1 Defendant's first argument on appeal is that the testimony of the State's expert witness was insufficient to prove beyond a reasonable doubt that the powder found in the ninth cigarette package consisted of cocaine and heroin as charged in counts I and II of the information. The powder was identified at trial by Stephen Hampton, a forensic scientist employed by the Bureau of Scientific Services. Hampton testified that he had performed the analysis of the powder and that his testing disclosed the presence of cocaine and heroin in the quantities previously noted. Defendant questions neither Hampton's qualifications as an expert, nor the chain of custody of the evidence he examined. Rather, defendant challenges only the manner in which Hampton's testimony was presented. According to defendant, that testimony was insufficient to establish the powder's composition because Hampton failed to set forth the factual basis for his opinion prior to making his identifications for the jury. This argument has no merit.

Our supreme court has adopted the procedures embodied in Rule 705 of the Federal Rules of Evidence for presentation of expert testimony. (Wilson v. Clark (1981), 84 Ill.2d 186, 195-96, 417 N.E.2d 1322, 1327, cert. denied (1981), 454 U.S. 836, 70 L.Ed.2d 117, 102 S.Ct. 140.) That rule specifically states:

"The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination." Fed. R. Evid. 705.

Under the plain language of the rule, an expert is clearly not required to divulge the facts or data he considered before being allowed to state his opinion. This is so whether the opinion is based on firsthand or secondhand information. (Wilson v. Clark (1981), 84 Ill.2d 186, 194, 417 N.E.2d 1322, 1327.) Cross-examination is the appropriate method of eliciting the facts underlying an expert's opinion. (Lebrecht v. Tuli (1985), 130 Ill. App.3d 457, 482, 473 N.E.2d 1322, 1340.) The burden of establishing these underlying facts through cross-examination rests, of course, with the adverse party. (Wilson v. Clark (1981), 84 Ill.2d 186, 194, 417 N.E.2d 1322, 1327.) In the present case, defendant's attorney made no effort to cross-examine the State's expert witness regarding the test procedures he employed in identifying the powder. Under these circumstances, any deficiencies in development of the expert's testimony were defendant's responsibility alone. The expert testified properly, and his unchallenged identification of the powder was sufficient for the jury to find beyond a reasonable doubt that it consisted of cocaine and heroin.

• 2 Defendant next contends that the warrantless search of his person and automobile were unconstitutional and that the evidence obtained in these searches should therefore have been suppressed. Our court has held that warrantless searches are per se unreasonable under the fourth amendment to the United States Constitution unless they fall within a few specifically established and well-delineated exceptions. (People v. Hoffstetter (1984), 128 Ill. App.3d 401, 404, 470 N.E.2d 1247, 1250.) Consent, which waives constitutional protection, is one of those exceptions. (People v. Glover-el (1981), 102 Ill. App.3d 535, 539, 430 N.E.2d 147, 151, cert. denied (1982), 458 U.S. 1110, 73 L.Ed.2d 1372, 102 S.Ct. 3492.) In this case the trial court specifically found after an evidentiary hearing that defendant had consented to the search of his car and his person. A reviewing court will accept a trial court's finding on the issue of consent unless that finding is clearly unreasonable. (People v. Glover-el (1981), 102 Ill. App.3d 535, 539, 430 N.E.2d 147, 151.) The trial court's finding here was reasonable.

• 3 With respect to the search of defendant's person, evidence showed that defendant had signed a "Waiver and Consent to Search" form as a condition to employment at the ...


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