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People v. Hodogbey

July 16, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
NELSON HODOGBEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 96 CR 31629 Honorable Joseph G. Kazmierski, Jr., Judge Presiding.

The opinion of the court was delivered by: Justice Houriyhane

PRESIDING JUSTICE HOURIHANE delivered the opinion of the court:

Following a jury trial, defendant Nelson Hodogbey was found guilty of possession of a controlled substance (heroin) with intent to deliver and subsequently sentenced to a 10-year prison term. On appeal, defendant contends (1) that the evidence introduced against him was insufficient to establish his knowledge that the package he accepted contained heroin, (2) that a proper chain-of-custody was not established by the State sufficient to justify the admission of the heroin at trial and (3) that the closing arguments of the State operated to deny him a fair trial.

For the reasons that follow, we reverse.

BACKGROUND

Defendant was arrested on October 25, 1996 and subsequently charged with possession of a controlled substance (heroin) with intent to deliver pursuant to section 401(a)(1)(B) of the Illinois Controlled Substances Act (Act)(720 ILCS 570/401(a)(1)(B)(West 1996)).

At trial, special agent Sean Michael Sears testified that he was contacted on October 22, 1996, by a fellow member of the United Stated Drug Enforcement Administration stationed in London. He was told that English Customs had seized a quantity of heroin destined for Chicago. The heroin was contained in a package sent from Thailand. Arrangements were made for the transfer of the package to Chicago.

The package arrived on October 24, 1996. According to special agent Sears, the package was a "basic brown corrugated cardboard box," two to three feet long and approximately a foot-and-a-half wide. Among the numerous marks affixed to the package was an address label. That label directed the package to defendant. That label further indicated that the package had been sent from Bangkok, Thailand. Special agent Sears opened the package and found a "white powdery substance," which tested positive for heroin. There were also several pairs of leggings packed in plastic inside the package, along with a handwritten note, which read, "Dear Nelson, please here 12 pieces of legettes. I want see if you can sell quick and good price. Then next time I would send three dozen. Thank you and bye. Yours, Brown."

The following morning special agent Sears contacted Brian Hugh, a United States postal inspector who was to convey the package to defendant as part of a controlled delivery.

Chicago police officer Edward Mizera testified that, on October 25, 1996, he and several other officers began surveillance of the apartment building at 5250 North Sheridan Road at approximately 11:30 in the morning. Around that time, Inspector Hugh entered the apartment building with the package. Inspector Hugh was dressed as a mailman. A few minutes later, Inspector Hugh left the building and radioed a physical description of defendant. Inspector Hugh also confirmed that the package had been delivered and accepted.

Officer Mizera then observed defendant walk from the apartment building to the sidewalk where he looked both ways down the street before returning inside.

Approximately five minutes later, defendant and another individual left the apartment building and began walking down Sheridan Road. Neither was carrying the package. Officer Mizera and several other officers stopped them on the sidewalk. Defendant was shown a search warrant for his apartment. With keys given to him by defendant, officer Mizera entered the apartment and there saw the unopened package sitting in the center of the living room. Defendant was then arrested.

Officer Mizera also stated that the heroin seized from the package had a street value of between $75,000 and $80,000. To officer Mizera, that indicated a "high[-]level narcotics seller."

Inspector Hugh also testified. He stated that he proceeded to 5250 North Sheridan Road on the morning of October 25, 1996. According to Inspector Hugh, he entered the apartment building at approximately 12:15 in the afternoon and knocked on the front door of apartment 107. A voice inside that apartment asked who was there. Inspector Hugh replied, "Mailman." The door then opened and defendant stepped out, closing the door behind him. Inspector Hugh asked defendant if he was Nelson Hodogbey. Defendant said he was. Inspector Hugh asked defendant if he was expecting a package. Defendant asked where the package was from. Inspector Hugh pointed to the return address, whereupon defendant said, "Thailand." Inspector Hugh then asked defendant if the package was his. Defendant said it was. Defendant then accepted the package and took it inside his apartment. As he walked out of the apartment building, Inspector Hugh heard a door ...


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