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09/25/87 the People of the State of v. John Ebener

September 25, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JOHN EBENER, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

514 N.E.2d 205, 161 Ill. App. 3d 232, 112 Ill. Dec. 739

Appeal from the Circuit Court of La Salle County; the Hon. Thomas R. Flood, Judge, presiding. 1987.IL.1432

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Defendant was charged with unlawful possession of less than 30 grams of a substance containing cocaine in violation of section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(b)). Prior to trial, defendant filed a motion in limine asking the court to prohibit the State from introducing the results of scientific tests conducted on the confiscated substance at trial. The circuit court of La Salle County granted defendant's motion. The State filed a certificate of impairment and appeals the order granting the motion in limine. We affirm.

On October 1, 1985, a search warrant was issued for the person of the defendant, John Ebener, and his business premises, commanding officers to seize any white powdery substance containing cocaine, and related paraphernalia. The warrant was executed, resulting in a seizure from the business premises of several items allegedly containing a white powdery residue. The amount of the chemical substance was very small. The defendant was charged on October 2, 1985, with the offense of possession of less than 30 grams of a substance containing cocaine. Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(b).

The defendant first appeared in court on October 11, 1985. At that time, his attorney filed a "Motion to Preserve and Permit Inspection of Certain Evidence." Defendant specifically sought preservation of the substance allegedly containing cocaine and the right to examine and independently test the substance. The State made no objection to the motion, and the motion was granted.

On December 16, 1985, the State tendered to the defendant, as discovery, a one-page report dated November 18, 1985, by Dr. James Coglianese, the forensic scientist employed by the State. That report was not made a part of the record, but an affidavit of the assistant State's Attorney stating the disclosure to the defendant was filed with the court.

On January 8, 1986, the defendant filed motions for further discovery seeking, inter alia, detailed information about the machinery used and tests performed, as well as requesting the weight of any substance before and after testing, and the weight of any remaining substance available for testing by defendant. The defendant also requested a court order directing production of the substance. These motions were never called for hearing. In response, the State tendered to the defendant in January 1986 the laboratory evidence receipt, laboratory worksheet, and information concerning the tests performed and the laboratory equipment used. The notation "[substance] seized was not weighed" accompanied the information. In May 1986, the State tendered to the defendant a one-page report from the Bureau of Forensic Sciences of the Department of State Police dated April 16, 1986., Defendant alleges that in January 1986 he was told by the assistant State's Attorney that the substance had been destroyed in testing.

Trial was eventually scheduled for February 1987. On January 12, 1987, defendant again requested production of any of the seized substance remaining in order to conduct his own independent analysis. The State answered that no substance remained; all of the substance had been consumed by the testing. On January 27, 1987, the defendant filed his motion in limine which asked for an order preventing the State from using the results of the scientific tests at trial. The motion specifically alleged that the destruction of the substance violated the court's prior protective order. At a hearing on January 29, 1987, the trial court granted defendant's motion in limine. The court based its ruling on the following facts: (1) an order to preserve and permit inspection of the substance was entered on October 11, 1985; (2) the first set of tests was run in November 1985; (3) the State made an oral representation to defendant in January 1986 that there was no substance available to test, and the defendant relied on the statements; (4) the State ran a second set of tests in November 1986; and (5) the State acknowledged in open court on January 12, 1987, that all of the substance had been consumed in the testing. The court found the State was negligent in failing to preserve any of the substance, or if preservation was impossible, in failing to notify defendant so that he could be represented at the testing. The negligence of the State warranted the sanction of denying admission of the evidence at trial.

Without the use of the test results, the evidence against defendant is insufficient and the case must be dismissed. The State filed a certificate of impairment to this effect along with its notice of appeal.

The State raises two allegations of error on appeal: (1) a mutual mistake of fact exists in the record, and the cause should be remanded for a new hearing on the correct facts; and (2) regardless of the factual error, the court erred in granting the motion in limine without allowing the State to make a showing that it was necessary to consume all of the confiscated substance in the scientific testing.

The State has included, as an appendix to its brief, copies of the laboratory reports given to defendant in discovery. These documents are included to substantiate the argument that the court made its ruling based on mistaken facts. These documents were not made part of the record, but rather the record shows the affidavits of the assistant State's Attorney on file stating the documents were disclosed to defendant. Defendant has filed a motion objecting to the inclusion of these documents, arguing they are outside the ...


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