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June 7, 1996


Appeal from the Circuit Court of Lake County. No. 94-CF-0284. Honorable Harry D. Hartel, Jr., Judge, Presiding.

Released for Publication July 8, 1996.

The Honorable Justice Inglis delivered the opinion of the court: Geiger and Doyle, JJ., concur.

The opinion of the court was delivered by: Inglis

The Honorable Justice INGLIS delivered the opinion of the court:

Defendant, Fazal Omar, appeals the verdict of the circuit court of Lake County which found him guilty of two counts of unlawful possession of a controlled substance (720 ILCS 570/402 (West 1994)). We affirm.

Defendant was charged with two counts of unlawful possession of a controlled substance as a result of events which occurred on the night of February 12, 1994. On that night, several members of the Waukegan and Park City police departments were present at the Stardust Motel in Park City. Officers Michael Taylor, David Mercado, and Michael Szuchnicki testified that they were inside a motel room at the Stardust Motel. The front door was open and the parking lot was illuminated by a street light. A car pulled up and defendant got out. Defendant began to walk towards the motel room where the officers were, at which point Officer Taylor approached defendant and asked him to take his hands out of his pockets. Defendant obliged, but then proceeded to throw two small objects into a snowbank.

Officer Mercado saw defendant throw the objects, and the officer went over and retrieved the objects from the snowbank. One of the objects was a napkin which had two small plastic baggies inside. The baggies contained a rock-like white substance. The other object was a larger plastic bag, which contained a white rocky substance. Officer Mercado turned the objects over to Officer Szuchnicki.

Officer Szuchnicki also saw defendant throw some objects, although he did not see where they fell. Officer Mercado handed Officer Szuchnicki the bags containing the white substances. Officer Szuchnicki was not sure what was in the bags, so he field tested the substances using Valtox, a cobalt reagent. The Valtox turned blue, which was indicative that the samples were cocaine. Officer Szuchnicki then sealed both objects in separate envelopes and placed the envelopes in an evidence bag.

The evidence bag was placed in the evidence vault at the Waukegan police station. The evidence custodian later removed the bag from the vault and took the bag to the Northern Illinois Police Crime Laboratory for further testing. Upon arrival at the laboratory, the secretary at the crime laboratory signed for the evidence. Chris Hedges, a forensic scientist with the laboratory, received the evidence bag with the sealed envelopes. He then opened the envelopes and proceeded to test the substances.

Mr. Hedges indicated that the larger package contained a clump of white powdery material. Mr. Hedges first tested the package using a cobalt reagent, which was similar to the Valtox testing reagent used by Officer Szuchnicki. The reagent turned a blue color which could indicate that the package contained cocaine. However, Mr. Hedges proceeded to further test the first package. The additional test results indicated that the package might contain heroin mixed with diphenhydramine. Diphenydramine is a white, powder-like substance which is often mixed with heroin to increase the heroin's street value. Mr. Hedges indicated that the diphenhydramine would also yield a blue result when mixed with a cobalt reagent and thus would explain the blue result from Mr. Hedges' and Officer Szuchnicki's initial tests.

Mr. Hedges proceeded to further test the larger package by placing it in a gas chromatograph mass spectrometer (GCMS). The GCMS compares various attributes of the unknown substance to the attributes of a known substance and then determines which substance the unknown substance best matches. The test returned a score of 9,580 out of 10,000 that the substance was heroin, which led Mr. Hedges to conclude, in his expert opinion, to a reasonable degree of scientific certainty, that the package contained heroin. The next closest possible substance returned a score of 6,651 out of 10,000.

Mr. Hedges also tested the smaller package in the GCMS, and the test returned a score of 9,917 out of 10,000 that the substance was cocaine. Mr. Hedges concluded that the substance in the smaller package was cocaine.

The jury returned a verdict of guilty on both counts, and defendant was sentenced to two years' imprisonment. On appeal, defendant argues that the evidence presented was insufficient to prove defendant guilty beyond a reasonable doubt. Defendant further argues that he was denied a fair trial as a result of the State's alleged improper gestures and remarks during closing argument. Lastly, defendant contends that the makeup of the jury venire was such as to violate defendant's sixth and fourteenth amendment rights, as well as defendant's right to equal protection.

We turn now to defendant's first argument. Defendant argues that he was not proved guilty beyond a reasonable doubt because the State's case was filled with inconsistent and incredible testimony. Specifically, defendant notes that Officers Taylor, Mercado, and Szuchnicki testified that the larger package retrieved from the snowdrift (heroin) was a large, white, rock-like substance, while Mr. Hedges testified that it was a clump of a powder-like substance. Further, defendant notes that the officers testified that the substance had tested positive for cocaine although expert testimony established that the substance was heroin. Defendant also contends that the officers' testimony differed as to where exactly defendant had ...

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