Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois No. 96--CF--1018 Honorable Larry Vandersnick Judge, Presiding
The opinion of the court was delivered by: Justice Koehler
A Rock Island County jury convicted the defendant, Ali C. Hall, of unlawful possession with intent to deliver more than 1 but less than 15 grams of a controlled substance within 1,000 feet of a school (720 ILCS 570/401(c)(2), 407(b)(1) (West 1996)) and obstruction of Justice (720 ILCS 5/31-4 (West 1996)). The defendant now appeals only his conviction on the controlled substance charge. We must answer the following question: Was the State's evidence sufficient to prove that the defendant was guilty beyond a reasonable doubt of the charged offense when it randomly tested 6.4 grams of a white rocky substance of questionable homogeneity? Because we conclude that the State proved only that the defendant was guilty of unlawful possession with intent to deliver less than one gram of cocaine within 1,000 feet of a school zone in violation of section 407(b)(2) (720 ILCS 570/407(b)(2) (West 1996)), we affirm as modified and remand.
Rock Island police were surveying a parking lot where drug transactions were suspected, when the police observed the defendant, Ali Hall, get into a car driven by Edward Collier that had pulled into and out of the parking lot where the defendant had been standing. An officer communicated his observations to two fellow officers in another car who caught up with Collier's car as it made an unsignaled right turn. When the officers attempted to effectuate a traffic stop, the defendant jumped out of the car and ran between two houses, and the officers gave chase. One officer saw the defendant lower his clenched fist to the ground, open it, and throw something to the ground. The other officer saw the defendant slapping his hands together.
The officers searched the area between the houses where the defendant had run and recovered a wadded $20 bill and 30 to 40 small, white rock-like items believed to be crack cocaine. After placing the substance into an evidence bag, both officers acknowledged that there was other "white stuff" in the area, which they described as possibly paint chips or mortar, but they denied picking up any paint chips or mortar.
Collier told police that he had seen the defendant put his hand in his pants pocket and remove something before jumping from his vehicle. A search of Collier's car revealed an empty plastic baggie on the passenger side that had been ripped open.
At the State Police crime lab, a forensic chemist weighed the contents of the evidence bag and then tested less than one milligram of the powder residue. He did not, however, test any of the 30 to 40 individual samples. The chemist opined that the white rock/powder substance was 6.4 grams of cocaine base.
A jury convicted the defendant of unlawful possession with intent to deliver more than 1 but less than 15 grams of a controlled substance within 1,000 feet of a school (720 ILCS 570/401(c)(2), 407(b)(1) (West 1996)) and obstruction of Justice (720 ILCS 5/31-4 (West 1996)). Accordingly, the circuit court sentenced the defendant to concurrent terms of imprisonment of 10 years and 3 years. He now appeals his conviction on the controlled substance charge.
The defendant, relying on People v. Jones, 174 Ill. 2d 427, 675 N.E.2d 99 (1996), argues that the State failed to prove beyond a reasonable doubt that he possessed more than one gram of cocaine. He maintains that the individual samples were of doubtful homogeneity and, as such, were analogous to the individual packets in Jones. Moreover, he argues that each of the samples should have been tested, otherwise, overwhelming doubt exists that the samples were sufficiently homogeneous for one to infer beyond a reasonable doubt that the untested samples contain the same substance as the residue that was conclusively tested.
It is well settled that when a defendant is charged with possession of a specific amount of a controlled substance with intent to deliver and there is a lesser-included offense of possession of a smaller amount, the weight of the seized drug is an essential element of the crime and must be proved beyond a reasonable doubt. Jones, 174 Ill. 2d at 428-29, 675 N.E.2d at 100. See also People v. Robinson, 167 Ill. 2d 397, 409, 657 N.E.2d 1020, 1027 (1995). The State need not prove that all of the suspected illegal substance was tested as long as the amount tested was sufficient to establish the minimum amount needed to prove the charge against the defendant. See Robinson, 167 Ill. 2d at 410, 657 N.E.2d at 1027.
Although every sample seized generally need not be tested in order to render an opinion as to the makeup of the substance as a whole, random testing is permitted only when "the seized samples are sufficiently homogeneous so that one may infer beyond a reasonable doubt that the untested samples contain the same substance as those that are conclusively tested." Jones, 174 Ill. 2d at 429, 675 N.E.2d at 100. When the samples are not sufficiently homogeneous, a portion from each container or sample must be tested to ascertain its contents. Jones, 174 Ill. 2d at 429, 675 N.E.2d at 101.
In Jones, the defendant was arrested for the possession of five separate packets containing a white rocky substance which the police believed to be a controlled substance. The State tested the contents of two of the packets but did not test the remaining three packets. The results of the two tested packets showed the presence of cocaine. Notably, while the two tested packets weighed a combined total of 0.59 grams, the total weight of all five packets was 1.4 grams. The defendant was subsequently convicted of possession with intent to deliver 1.4 grams of cocaine. Although the defendant had not pointed to any feature at trial that distinguished the two tested packets from the other three packets, the appellate court refused to depart from the long-standing rule requiring the State to test an adequate number of samples with a sufficient combined weight to establish the elements of the offense and reversed after concluding that the evidence only supported the defendant's possession of 0.59 grams of cocaine with intent to deliver. Our supreme court affirmed. Jones, 174 Ill. 2d at 430, 675 N.E.2d at 101.
The circumstances that lead us to question whether random testing is appropriate in the instant case are even more compelling than those in Jones. First, the samples at issue were contained in one plastic baggie that the defendant ripped open, emptied into his hand, and then stuffed into his pants pocket, which likely contained any number of other items. Second, during his flight from police, the defendant threw the substance from his pocket, scattering it onto the wet, grass-covered ground. Thus, when the police scooped the substance into an evidence bag, they had to distinguish it from possible paint chips and mortar. Accordingly, whether the untested samples at issue contained cocaine or ...