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09/30/97 PEOPLE STATE ILLINOIS v. ROLANDO GARCIA

September 30, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROLANDO GARCIA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Stanley Sacks, Judge Presiding.

Released for Publication November 26, 1997.

Presiding Justice Greiman delivered the opinion of the court. Theis and Zwick, JJ., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Defendant Rolando Garcia was charged by indictment with a single count of possession of a controlled substance (15 or more grams but less than 100 grams of cocaine) with intent to deliver. Following a jury trial, defendant was convicted of the lesser included offense of possession of a controlled substance and sentenced to seven years' imprisonment. On appeal, defendant contends that: (1) the trial court abused its discretion in instructing the jury, sua sponte and over defendant's objection, on the lesser-included offense of possession of a controlled substance, and (2) he was not proven guilty beyond a reasonable doubt. For the reasons that follow, we reverse.

The State's evidence established that on the morning of September 16, 1994, Chicago police officers Robert Norise, Clyde Raymond, Kenny Johnson, Cindy Zalinski, Carla Kubasak and Sergeant Thomas Martin executed a search warrant for a house, located at 5520 South Francisco in Chicago, and an arrest warrant for a person named "Hygie."

When the police arrived at the house, they knocked and identified themselves. Once inside, they met Alfredo Aguilar and an unnamed female. In searching the unfinished basement, Officer Norise saw no walls. He found dirty adult clothing, a laundry area, a bed in a sleeping area, and a pool table.

When Officer Norise opened a utility closet, which was located along the north wall of the basement, he found a gas meter and a small, white box of plastic sandwich bags. Because he was not the police officer who had applied for the warrant, Officer Zalinski was called. The search continued after Officer Zalinski arrived. Officer Norise handed Officer Zalinski the box he had discovered on a ledge several inches over the door inside the closet. The box contained 24 smaller, plastic bags of a white, rock-like substance, a small scale and some mail. Several traffic tickets issued to defendant were found and indicated that on July 23, 1994, he lived at this address. Several court summonses, dated September 12, 1994, and issued to defendant at that address, were also found. Based upon his experience, Norise, a veteran officer, was of the opinion that the sandwich bags and the gram scale were used for selling drugs.

Officer Kenneth Johnson corroborated Norise's testimony concerning the items found in the house. Officer Johnson also testified that Officer Zalinski maintained possession of the recovered contraband until it was inventoried. At the police station, Officers Zalinski and Johnson placed the suspect drugs in a heat-sealed evidence bag, marked with inventory number 1395861, and then placed the bag in the vault. All of the recovered property was recorded in the inventory book before it was sent to the crime laboratory. The items inventoried included: traffic citations, traffic court notices of nonappearances and bond forfeiture, an electric gram scale, and the clear plastic sandwich bags.

On September 28, Officer Johnson received a notice of discrepancy from the crime laboratory, stating that 25 bags had been inventoried, but only 24 bags of a white, rock-like substance were recovered from the heat-sealed envelope received by criminologist John McDonald. The next day, Officer Johnson reinventoried the evidence envelope of plastic bags attributed to defendant at 5520 South Francisco and counted 24 bags. Johnson attached a new inventory slip, which was automatically generated by the crime laboratory and reflected a new inventory number. He then attached it to the old inventory envelope.

Officer Ethel Scherr testified that on September 29, 1994, she arrested defendant in response to a call regarding a suspicious van containing two occupants in the 5400 block of South Rockwell. When Scherr approached the van and defendant did not produce identification, he was taken to the police station. At the police station, defendant provided the police with his name and address, 5520 South Francisco. When the police told defendant of an outstanding narcotics warrant for defendant's arrest, he did not seem surprised. Defendant responded that police officers had recently been to his home. The police officers then completed an arrest report verifying this information. During this inquiry, defendant showed the officers a tattoo on his arm which read "Hygie."

Criminologist John McDonald testified that he originally counted 24 bags of substances, although the original inventory sheet listed 25 bags. After the discrepancy was rectified by Officer Johnson, McDonald tested and weighed the substances. During this reinventory, the computer generated a new inventory number for the bag. Out of 24 bags, McDonald tested 20 bags, weighing 17.2 grams, and found each bag contained cocaine.

The defense called Michael Bagain, defendant's friend, who testified that he spoke to defendant on the day of the raid. On the day of the raid, Bagain purchased one-sixteenth ounce of cocaine from Aguilar at 5520 South Francisco. Bagain did not enter the house that day or know where Aguilar kept the drugs he purchased. Bagain testified that on the day of the raid defendant resided at 7343 South Archer Avenue.

Timothy Goheen, another friend of defendant, testified that in early September 1994, he lived at 7443 West Archer in Summit with his fiancee, Diane Bagain, who was Michael Bagain's sister, and his child. Defendant moved into the apartment that month ...


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