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May 2, 1994


Appeal from the Circuit Court of Cook County. Honorable HOWARD SAVAGE and MARY JANE THEIS, Judges Presiding.

Buckley, Campbell, O'connor, Jr.

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Following a bench trial, defendant Charles Terry was convicted of unlawful use of a weapon and possession of a controlled substance in an amount greater than 100 grams. He was sentenced to concurrent five-year and 10-year terms in the Illinois Department of Corrections. He appeals his convictions and sentences.

Chicago police officer Ernest Brown was the State's first witness at defendant's trial. He testified that on June 19, 1990, at about 2:50 p.m., he and his partners were in an unmarked police car at 1000 West 18th Street. They were at this location pursuant to a search warrant issued for defendant's apartment at that address. He had seen defendant on previous occasions and was familiar with his appearance. Brown observed defendant, accompanied by two females, exit the apartment building. Defendant and the women got into a car and drove away. Defendant was driving the vehicle. Brown then radioed to other officers in official police vehicles to stop defendant. Brown was present when defendant was stopped. He was placed under arrest, given his Miranda rights and informed of the search warrant. Defendant and the officers drove back to the apartment.

They entered the apartment through the back door, which led directly into the kitchen. Defendant was seated in a kitchen chair while the officers executed the warrant in his presence. Upon entering defendant's living room, Brown observed a clear plastic bag containing several smaller plastic bags of a white rock-like substance. The larger bag also contained rocky loose powder. Thereafter, Brown informed defendant that he was being charged in connection with the narcotics found in his apartment. Brown administered the Miranda warnings again.

Brown testified that defendant responded that he did not want his "woman and daughter involved in this, the drugs are mine." Next, according to Brown, defendant admitted that he had "a little .25 [pistol] in the cabinet in front." Brown recovered a fully loaded .25 caliber semiautomatic pistol from a cabinet in the living room. The following items were also confiscated from defendant's apartment: an Illinois Bell telephone bill in defendant's name to that address, Dorman pills, two pagers, a digital scale, a hanging scale and two photos of defendant.

The plastic bag containing the smaller bags was transported to the organized crime division, where it was inventoried according to regulations and submitted to the Chicago police crime lab for analyses.

Crystal Watson, a criminalist for the Chicago police department, testified that she analyzed inventory envelope 783193. She received the inventory in a sealed envelope with a police officer's signature on top of the tape. Inventory envelope 783193 contained a large plastic bag with six knotted plastic bags inside it. There were no puncture holes in any of the six bags. Watson could not recall whether the larger plastic bag was sealed.

On June 22, 1990, Watson tested two of the six bags contained in inventory envelope 783193. The weight of those two bags totalled 32.32 grams. After performing the tests, she heat sealed the two bags, noted the date and the weight on the bags and heat sealed them in the original bag. Watson testified that on April 16, 1991, she tested five of the six bags contained in inventory envelope 783193. The substance she tested was a dry white powder. The total weight of those bags was 102.6 grams. After her tests she returned the substance to the bags, indicating the weights and date, accompanied by her signature. She, then, placed the bags in their original bag and envelope and properly sealed them. Defendant stipulated that the substance tested on June 22, 1990, and April 16, 1991, tested positive for cocaine.

On cross-examination, Watson testified that she was not aware that cocaine could absorb moisture. On re-direct examination, she opined that based on the sealed condition of the substance when she received it for testing, they "could not [have] absorbed moisture." Next, the parties stipulated that the substance inventoried was that recovered from defendant's apartment and also stipulated to the cocaine's chain of police custody. The State then rested.

Dr. Robert Moriarty, defendant's witness, testified that if "cocaine is left open in the atmosphere it would gain weight by absorbing moisture from the atmosphere." On September 30, 1991, he watched Watson re-weigh inventory envelope 783193. At that time the substance weighed 101.76 grams.

On cross-examination, Moriarty testified that the probable reason the weight of the cocaine changed from 102.6 to 101.76 grams was because the higher weight reflects the weight of the substance prior to a test sample being removed. Moriarty further admitted that a person would need approximately one gram of the cocaine for testing. He additionally stated that when he observed Watson re-weigh the cocaine, she had removed it from a sealed bag. He acknowledged that cocaine has a saturation point, and that he had no way of knowing whether the cocaine recovered from defendant's apartment had reached that point prior to being confiscated by the police.

The appellate record for review, skips to sentencing at this point in defendant's case. We ascertained from the sentencing hearing transcript that the circuit court found defendant guilty of unlawful use of a weapon and sentenced him to five years. He was also found guilty of possession of a controlled substance over 100 grams and sentenced to 10 years. The ...

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