The opinion of the court was delivered by: Justice Gordon
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY.
HONORABLE EDWARD FIALA, JUDGE PRESIDING.
Defendant, Tommy Jackson, was charged with and convicted of possession of a controlled substance with intent to deliver for possession of cocaine (720 ILCS 570/401(c)(2) (West 1998)) and heroin (720 ILCS 570/401(d) (West 1998)). Defendant was sentenced to six years in prison. On appeal, defendant argues that the State failed to prove him guilty of the charged offenses beyond a reasonable doubt; that the trial judge rendered inconsistent findings of guilty of possession of heroin and not guilty of possession of cocaine; that he was denied effective assistance of counsel and that the circuit court erred in denying his motion to suppress evidence. We reverse and vacate defendant's convictions. *fn1
At trial, Michael Soto (Soto) was the only witness for the State. Soto testified that he is a police officer with the Chicago police department. On September 19, 1998, he was working with his partner, Officer Michael Egan (Egan), near 1601 South Komensky in the City of Chicago while conducting a surveillance of that area. At approximately 11:30 in the morning, Soto saw defendant receive money from an unknown person and point to a third man, Jimmy Stidham, who was standing five to ten feet away from defendant, whereupon the unknown man walked over to Stidham and then left the scene.
Immediately after making the foregoing observation, Soto returned to a nearby alley where the police car, which his partner was driving, was parked. The officers then drove from the alley back to the scene at 16th and Komensky where defendant and Stidham were still standing. As the officers pulled over, Stidham dropped a brown paper bag which he was carrying. Soto recovered the bag and began to pursue Stidham who started to run away. Soto subsequently detained Stidham while his partner detained defendant. One of the officers thereupon searched defendant and did not find any narcotics but did find $150 in cash on defendant's person. The officers also examined at the scene the brown paper bag which, according to Soto's testimony, contained 29 packets suspected to contain crack cocaine and 24 packets suspected to contain heroin.
On cross-examination defense counsel elicited for the first time from Soto that he observed Stidham reach into the brown paper bag and transfer an object from that bag to the unknown person. The specific colloquy of that cross-examination is set forth later in this opinion. On re-direct examination the State further pursued those facts. This colloquy is also set out later in this opinion.
The parties then stipulated to the chain of custody of the contents of the paper bag and to the chemical composition of the substance in the packets. The substances were cocaine and heroin, as the officers suspected. The State then rested its case-in-chief and defendant moved for a finding of not guilty, which was denied. Counsel for defendant proceeded to call several witnesses, none of whose testimony is relevant to this appeal. Defendant was subsequently convicted on both counts and sentenced to six years in prison. *fn2 This appeal followed.
Defendant first argues that he was not proven guilty beyond a reasonable doubt of possession of a controlled substance with intent to deliver. We agree.
Defendant in this case was convicted of possession of a controlled substance with intent to deliver pursuant to sections 401(c)(2) and 401(d) of the Illinois Controlled Substances Act (720 ILCS 570/401(c)(2), 570/401(d)(West 1998), which make it unlawful to possess with intent to deliver cocaine and heroin, respectively. As it was never alleged that defendant ever had actual, physical possession of the contraband at issue, defendant was convicted on a theory of accountability. Pursuant to section 5-2(c) of the Criminal Code of 1961 (720 ILCS 5/5-2(c) (West 1998)), a person is legally accountable for the conduct of another person when either "before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid such other person in the planning or commission of the offense."
In order to convict a defendant on a theory of accountability, the State must establish beyond a reasonable doubt that: "(1) the defendant solicited, ordered, abetted, agreed, or attempted to aid another in the planning or commission of the crime; (2) the defendant's participation took place before or during the commission of the crime, and (3) the defendant had the concurrent intent to promote or facilitate the commission of the crime." People v. Carrizales, 240 Ill. App. 3d 893, 900, 608 N.E.2d 30, 35 (1992). "There must be proof of the intent to aid, abet or attempt to aid another in the perpetration of the crime." Carrizales, 240 Ill. App. 3d at 901, 608 N.E.2d at 35. Such proof may be inferred from the circumstances surrounding the crime. Carrizales, 240 Ill. App. 3d at 901, 608 N.E.2d at 35.
In this case, the only link between defendant and the contraband at issue is the alleged transaction with the unknown person. The testimony did not establish the identity of the item which Stidham was alleged to have handed to the unknown person.
While cross-examination by defense counsel elicited from the witness the fact that he observed Stidham give the unknown person an object which he retrieved from his bag and while it is true that the remaining contents of the bag were shown to be narcotics, those facts alone are insufficient to establish that the object transferred to the unknown person was contraband. It is at least theoretically possible that there was something innocuous in the bag which Stidham handed to the unknown person, notwithstanding that the remaining packets in the paper bag contained cocaine and heroin.
While we have not found any cases directly on point, we find People v. Tony Jones, 174 Ill. 2d 427, 429-30, 675 N.E.2d 99, 101 (1996), to be analogous. In Tony Jones, the defendant was arrested for the possession of five packets containing a white rocky substance which police believed to be cocaine. The contents of two of the packets tested positive for cocaine; however, the remaining three packets were not tested. The two tested packets weighed only .59 grams together, while the combined weight of all five packets was 1.4 grams. The defendant was convicted of possession with intent to deliver 1.4 grams of cocaine.
Our supreme court held that the defendant in Tony Jones could only be convicted of possession with intent to deliver .59 grams of cocaine because the other three packets had not been identified as cocaine and no inference could be drawn that the three packets contained cocaine based on the mere fact that the other two packets did. The court reasoned that while "it is not difficult to speculate, as did the trial judge, that the remaining three packets may have contained cocaine, such a finding must be based on evidence and not upon guess, speculation or conjecture." Tony Jones, 174 Ill. 2d at 429-30, 675 N.E.2d at 101; see also People v. Hill, 169 Ill. App. 3d 901, 912, 524 N.E.2d 604, 612 (1988); People v. Maiden, 210 Ill. App. 3d 390, 400, 569 N.E.2d 120, 126-27 (1991); People v. Games, 94 Ill. App. 3d 130, 131, 418 N.E.2d 520, 521 (1981). The court distinguished the case of People v. Kaludis, 146 Ill. App. 3d 888, 895-96, 497 N.E.2d 360, 365 (1986) (testing of three of 100 tablets sufficient where all the tablets had identical markings, lettering characteristics, beveling and scoring and chemist opined that all of the tablets were made on the same tablet press with the same set of dies), reasoning that such random testing is permissible only "when [as in Kaludis] the seized samples are sufficiently homogenous so that one may infer beyond a reasonable doubt that the untested samples contain the same substance as those conclusively tested." Tony Jones, 174 Ill. 2d at 429, 675 N.E.2d at 100.
In the case at bar the only evidence that the object received by the unknown person was contraband is that it came out of a bag which was later found to contain packets of cocaine and heroin and nothing else. The inference that the unknown object contains narcotics because it came out of a bag containing packets of narcotics is clearly analogous to presuming that because two of five packets in the possession of a defendant contain cocaine, the other three do as well. Such an inference was expressly prohibited by our supreme court in Tony Jones, and we see no reason why a similar inference should be permitted here.
In addition to the fact that the object purportedly "purchased" was not identified, the evidence presented does not offer sufficient proof that defendant was involved at all in the transaction pertaining to that unidentified object. Even if the contents of the unknown object were identified as a narcotic, the evidence falls short of establishing defendant's involvement as its vendor. Since the exchange is predicated only upon the observation of a single transaction, it is more than theoretically possible that the unknown person's involvement with defendant was not connected with the unknown person's subsequent transaction with Stidham. While defendant did point in Stidham's direction, we do not consider this single observation alone to be sufficient on which to predicate a conviction. As an isolated occurrence without any conversation, attempting to tie in the pointing to Stidham with the transaction is too speculative. The unknown person may, for example, have paid a debt to defendant which was unconnected to any subsequent transaction with Stidham. At least theoretically, the pointing to Stidham could have been in answer to a question asking defendant if he knew where Stidham could be found. These concerns would have been substantially ...