APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
531 N.E.2d 1049, 177 Ill. App. 3d 18, 126 Ill. Dec. 422 1988.IL.1734
Appeal from the Circuit Court of McHenry County; the Hon. Roland A. Herrmann, Judge, presiding.
JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and REINHARD, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
The defendant, Glen A. Hominick, was found guilty by a jury in the circuit court of McHenry County of seven counts of delivery of a controlled substance (cocaine) (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(c)) and one count of narcotics racketeering (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1654(a)). Defendant was sentenced to seven years' imprisonment on each of the seven unlawful delivery convictions and 12 years on the narcotics racketeering conviction, all sentences to be served concurrently.
He raises eight issues: (1) whether the chain of custody of the cocaine was sufficiently proved; (2) whether his motion for a directed verdict at the close of the State's evidence should have been granted where the State failed to prove any weight of certain of the items tested for cocaine; (3) whether his motion for a directed verdict at the close of the State's evidence should have been granted where the State failed to prove him guilty beyond a reasonable doubt of narcotics racketeering; (4) whether the court allowed improper cross-examination of a defense witness; (5) whether the State failed to prove venue as to three of the offenses; (6) whether the jury was properly instructed as to narcotics racketeering; (7) whether the narcotics racketeering statute is unconstitutionally vague; and (8) whether the sentence is excessive and the result of an improper consideration of factors in aggravation and mitigation.
On seven different occasions between July 26 and October 8, 1986, the defendant sold varying small amounts of cocaine, less than 10 grams in each instance, to undercover police. These sales all occurred in different areas of the premises of the Glory Days Bar and Grill in Harvard, McHenry County, Illinois. Further facts necessary to an understanding of the issues raised will be presented prior to analysis of each issue.
The defendant contends the chain of custody proved by the State's evidence was insufficient to permit admission of State's exhibits Nos. 1 through 7. He points out that the initial handling of the cocaine received from the defendant by Officer Ainsworth and Detective Salgado was careless, there was no testimony as to the condition of Ainsworth's file cabinet or Salgado's briefcase at the times the cocaine was removed therefrom and turned over to McHenry County sheriff's department Detectives Pandre and Lockhart, there was no evidence as to what happened to the white envelope each of Ainsworth's buys were initially sealed in by him, and there was no testimony as to how the items were brought to court on the day of trial. Such evidence, he argues, was insufficient to sustain the State's burden of establishing a reasonable probability that the evidence had not been altered or substituted prior to trial.
The State's position is that the evidence properly was admitted where numerous witnesses identified the items as being the same items produced by the defendant and as being in substantially unchanged condition, and where a chain of possession was established which provided an additional basis for admission of the evidence.
Defendant's contention necessitates a review of the facts surrounding the chain of custody. In the first transaction on July 26, undercover police officer Shawn Ainsworth purchased two white packets containing one-half gram of cocaine each from the defendant for $100 at the Glory Days Bar and Grill in Harvard. Ainsworth left the bar, put the packets in a white business envelope and sealed the envelope. He drove home and put the sealed envelope in a combination file/gun cabinet which he locked with a pushbutton key lock. No one else had a key or access to the cabinet, and he had no other packets of cocaine in the cabinet at that time. He later turned the cocaine over to Detective Pandre. Ainsworth identified People's exhibit No. 1 in court as the two packets which he purchased from the defendant on July 26. He identified them because they had the marking "1/2" on the seal of the packet itself. The packets were in the same condition as they were when he received them and turned them over to Detective Pandre except they had tape and other markings on them.
On cross-examination regarding this incident, Ainsworth testified he did not open the packets to inspect them, nor did he initial or mark the white envelope in which he sealed them. Two other people resided with Ainsworth in his home located in Boone County about three miles from Harvard. The cabinet was his and was a two-drawer gray metal filing cabinet. It was 17 hours later when he turned the still sealed white envelope over to Detective Pandre at a country vegetable stand just off route 47 and Charles Road. People's exhibit No. 1 did not contain a white envelope, and he did not know what happened to the white envelope after he gave it to Detective Pandre.
Detective Pandre identified People's exhibit No. 1 as the two "snow-seals" he received from Ainsworth. Pandre immediately brought them to his office in the courthouse, where there is an evidence room. The packets tested positive for cocaine. He weighed them and secured them in a plastic bag and put them by themselves in a locked evidence locker. He wrote on the clear plastic bag what the contents were and the date he received them and sealed the top with evidence tape. Only he and Detective Ronald Page had keys for the evidence locker. He later turned the plastic bag over to Detective Lockhart. In court, the packets were different from when he received them from Ainsworth in that they had orange tape and some markings on them, and the package was different than when he turned it over to Detective Lockhart in that it had been opened in an area other than the top seal and resealed and there were some other dates on it.
Detective Lockhart identified People's exhibit No. 1 which he received from Detective Pandre. He distinguished its present appearance and the appearance of its contents from their condition when he received them from Pandre. He transported People's exhibit No. 1 to the State police crime lab in Rockford and gave it to forensic scientist James O'Connor. Other than the People's exhibit sticker, it was in the same condition as it was when he received it back from James O'Connor.
On July 31, Ainsworth again was in the Glory Days Bar and Grill and purchased one-half gram of cocaine from the defendant for $50. He put the packet on his person and went to his car, where he put it in a white business envelope, sealed it, took it home, put it in the file cabinet and locked it. The cabinet remained locked at all times, and no one else had access to the cabinet. There were no other drugs in the cabinet. The delivery occurred in McHenry County, Illinois. Ainsworth identified People's exhibit No. 2 at trial as the packet he purchased on July 31. It had a little mark in the right-hand corner on one side which read "1/2." The packet was different than when he turned it over to Detective Pandre the next day, August 1, in that it had clear red evidence tape and writing on it. On cross-examination, Ainsworth stated he did not inspect the packet, but sealed it in an envelope and put it in his own file cabinet. He turned over the white envelope to Detective Pandre 22 hours later.
Detective Pandre testified he received People's exhibit No. 2 from Ainsworth in a white envelope that was not a part of the purchase but, rather, Ainsworth's own envelope, which Pandre destroyed. When Ainsworth handed him the white envelope, he asked Ainsworth whether the envelope was something he received at the Glory Days Bar and Grill. The envelope may have been licked shut, but he did not recall. He field-tested the substance, secured it in a plastic envelope and put it by itself in a separate drawer in the narcotics evidence locker. Except for some tape on the bottom, tape on the packet, some writing and the exhibit number, People's exhibit No. 2 was in the same condition as when he turned it over to Detective Lockhart. Referring back to People's exhibit No. 1, Pandre could not recall whether the two packets he received from Ainsworth were in a white envelope. Since there was more than one packet, Ainsworth may have put them in a white envelope, but Pandre was not sure.
Detective Lockhart identified People's exhibit No. 2 which he received from Detective Pandre. Other than some distinguishing tape and writing and the exhibit number, it was in the same condition as when he received it from Pandre. After receiving it from Pandre, Lockhart took it to Ed McGill at the State police crime lab. Lockhart described how its appearance differed upon receiving it back from McGill, but otherwise it was in the same condition as when he turned it over to McGill.
Ainsworth again was in the Glory Days Bar and Grill on August 7. He arranged to buy one-half gram of cocaine from the defendant for $50. The defendant went into the kitchen area and came back out with a white packet which he put behind the matches in a matchbook and handed to Ainsworth over the bar. Ainsworth looked inside the matchbook, saw a white packet with a "half" marked on it and put the matchbook on his person. This transaction took place in the Glory Days Bar and Grill in McHenry County. He put the matchbook in a white business envelope, sealed it, took it home and locked it in his file cabinet. There were no other packets or books of matches inside the cabinet on August 7, and no one else had access to the cabinet. He turned the packet over to Detective Pandre later that same day. Ainsworth identified People's exhibit No. 3 as the matchbook and the packet he purchased on August 7. He recognized the little "1/2" indication in the corner written in pen. The packet and matchbook were in the same condition as when he turned them over to Detective Pandre except that the seal of the packet had red tape and writing on it and the matchbook had writing on it. On cross-examination, Ainsworth testified the locked cabinet was in his room.
Detective Pandre identified People's exhibit No. 3 which he received from Ainsworth. The packet was enclosed in a matchbook which Pandre took from him as being part of the transaction. The matchbook and packet were different than when he received them from Ainsworth due to markings on the matchbook and tape on the packet. Except for the tape on the bottom of the bag, some writing and an exhibit number, People's exhibit No. 3 was in the same condition as when he turned it over to Detective Lockhart. People's exhibit No. 3 was placed by itself in a separate drawer in the evidence locker.
On cross-examination, Detective Pandre said when he received the packet in the matchbook from Ainsworth, he did not recall if they were in a white envelope, but he felt the matchbook was important with regard to the delivery of the substance from the defendant to Ainsworth.
Detective Lockhart identified People's exhibit No. 3, a sealed plastic envelope containing a pack of matches and a folded piece of white paper which he received from Detective Pandre. He described how its appearance differed from when he received it from Detective Pandre and testified he then took it to Ed McGill at the Illinois State police crime lab in Rockford. He described how the exhibit's appearance differed from when he received it back from McGill, but otherwise it was in the same condition as when he turned it over to McGill.
On September 21, Ainsworth again was in the Glory Days Bar and Grill and asked the defendant if he would sell him some more cocaine. The defendant went into the back, came out, put a packet into a matchbook cover and handed it to Ainsworth across the bar. Ainsworth observed a white packet with "1/2" marked on it inside the matchbook. In his car, he secured the matchbook and white packet in a white envelope. He sealed the envelope when he got home and locked it in his file cabinet. No one else had access to the cabinet, and he had the only keys to the cabinet. The next day, September 22, he turned the packet and book of matches over to Detective Lockhart. Ainsworth identified People's exhibit No. 4 as the packet of cocaine which was inside the matchbook. Over the defendant's objection, Ainsworth testified he took the matchbook out of the white envelope because he was instructed by Detective Lockhart that he did not need the booklet of matches but just the quantity of drug. He recognized the packet by the "1/2" mark in the corner and testified he sealed the package himself. He knew it was the same package because he initialed the three evidence tapes several times across and also there was some of his writing on the front of it. Except for some additional clear red evidence tape and writing on it, it was in the same condition as when he received it from the defendant and turned it over to Detective Lockhart. Ainsworth testified this transaction took place in McHenry County, Illinois.
On cross-examination regarding this incident, Ainsworth testified he saw the "seal" (the white packet) inside the matchbook but did not open it. The white envelope remained in the cabinet for about 18 hours; he was not present the entire 18 hours. He called Detective Lockhart, and he told him he did not need the matchbook. Ainsworth opened the white envelope and discarded the matchbook. In his room, he sealed the packet in a clear plastic envelope, zip-locked it and sealed it at the top with three tapes which he initialed on both sides. On redirect, Ainsworth testified he was instructed not to drive back to the sheriff's department on any of the occasions on which he made a buy.
Detective Lockhart identified People's exhibit No. 4 which he received from Ainsworth. He field-tested the evidence, then placed the sample back in the original envelope and sealed it. He kept it in the evidence vault at the sheriff's department until September 26, when he turned it over to Ed McGill at the crime lab. He described the differences in the condition of the exhibit from when he received it from Ainsworth and when he received it back from the crime lab.
McHenry County sheriff's department Detective Ron Salgado testified he went to the Glory Days Bar and Grill located in Harvard on August 21. Pursuant to a prior arrangement with the defendant, Salgado received from him one "snow-seal" packet with "1/2" marked on it for $50. He put it in his pocket, went back to the bar for a short time, then went to his car. He put the packet in a plastic bag he had in his car and put it in his pocket. When he arrived home, he sealed the bag with tape, initialed it and placed it in a briefcase. He locked the briefcase with a key and kept the key on his person. No one else had access to the briefcase, and he kept the only key for it on his key ring. The packet was picked up by Detective Lockhart approximately a day and one-half later. Salgado did not turn it over to Detective Lockhart immediately because this was a long-term undercover operation which may have been jeopardized had he gone directly to the police station. He identified People's exhibit No. 5 as the item he received from the defendant on August 21 by the initials which he had placed on the tape and the "1/2" mark on the packet. Except for certain red tape, writing and other initials, Salgado testified the packet was in the same condition as it was when he turned it over to Detective Lockhart and when he received it from the defendant in the Glory Days Bar and Grill.
On cross-examination, Salgado testified he did not taste, test, or sample the contents of the packet. His home is 20 to 25 minutes from Harvard in Wonder Lake. He testified the evidence locker is one method of securing evidence to prevent tampering. He explained the difference between a controlled buy using an informant and a direct buy, which is how he ...