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People v. Herrero

June 29, 2001


The opinion of the court was delivered by: Justice Reid


Appeal from the Circuit Court of Cook County. Honorable Marcus R. Salone, Judge Presiding.

Following a jury trial, Hector Herrero was convicted of possession of a controlled substance with intent to deliver. He was sentenced to 25 years in prison and now appeals that conviction. We affirm the conviction and remand it solely for a recalculation of a proper credit for time served on the mittimus for the following reasons.


On September 9, 1997, the Chicago police received a tip from a confidential informant that a substantial amount of cocaine would arrive in the area of Kostner and Armitage, hidden in a red Buick. Based upon this tip, the police began their observation of the area.

Officer Loretta Huberts and her partner, Officer Manny Colon, were parked, watching the area under surveillance. Herrero arrived in a silver Honda and waited until a red Buick pulled up and parked in front of 4404 West Armitage in Chicago. Reinaldo De Jesus emerged from the red Buick and walked toward Herrero. De Jesus handed keys to Herrero and kept walking down the street to stand in front of 4400 West Armitage. Herrero went to the red Buick, opened up the passenger side door with a key, got in and slid over to the driver's side. Herrero then turned on the ignition, depressed the brakes, and activated the left turn signal. He then dipped below the dashboard, out of view of the officers. He then closed the driver's side door, reached back, then got out of the car carrying a white plastic bag in his right hand. The bag was described by Huberts as "brick shaped[,] *** white and very transparent like one of those little shopping bags they give you at the grocery store *** and it was wrapped tightly around it." Officer Manny Colon described the same bag as a "white plastic bag which was like transparent type, more like one of those Jewel type or grocery type bags, rectangular." Colon also described the way Herrero was holding the bag as "like if it were a book." Both Huberts and Colon testified that, based on their experience in narcotics investigations, they thought the plastic bag contained a kilo of cocaine.

Herrero took the plastic bag and walked toward 4400 West Armitage. He and De Jesus went into the building. After a few minutes inside, Herrero emerged from the building and returned to the passenger side of the Buick. He then put the plastic bag in the car, shut the door and returned to De Jesus.

The police approached Herrero and De Jesus on foot. They identified themselves as police and told Herrero and De Jesus they were under investigation for possession of cocaine. The police asked Herrero to sign a consent form so they could search the silver Honda. He signed the form. Sometime after Herrero signed the form, more police arrived with Roxy, a drug-sniffing dog. The dog sniffed the silver Honda but did not alert on anything. Roxy was then allowed to sniff the red Buick, and the dog alerted. After Roxy alerted, the police decided to get a search warrant for the vehicle. The red Buick was impounded and taken to a police station.

Once the vehicle arrived, Officer Huberts attempted to reproduce the movements Herrero made in the car. When nothing happened, the police inspected under the dashboard. There were two little holes on the driver's side under the dashboard. They found a rat-tail comb stuck in the visor, the tail of which fit in the holes. Upon insertion of the comb, two traps popped open. On the passenger side, police found the white plastic bag Herrero had carried. It contained a kilo of what appeared to be cocaine. There were three more kilos of what appeared to be cocaine in that trap and three more kilos in the driver's side trap. All of the kilos except the one in the plastic bag bore emblems on them that looked like little pumpkins. Officer Huberts inventoried all the evidence found in the traps and personally carried it down to the crime lab for testing. When she got the evidence to the crime lab, Huberts testified she watched as the evidence was repackaged into boxes because they did not fit into evidence envelopes. She indicated the crime lab personnel made her seal and initial the boxes. The crime lab people then gave her two receipts for the boxes.

The individual brick from the plastic bag carried by Herrero was inventoried with evidence number 1865259 while the remaining bricks bearing the "pumpkin" emblems were inventoried together and given the evidence number 1865258. In addition to the suspected drugs recovered, the police collected pagers, cellular telephones, money, identification and various other items from Herrero and his co-defendant, De Jesus. The wrappings from some of the kilos were sent for latent print analysis, said examination revealing no such latent prints.

During the trial, Officer Thomas Jones of the asset forfeiture unit of the Chicago police testified over objection that the Buick had been sold after being forfeited in an uncontested administrative forfeiture proceeding. In overruling the objection, the trial court stated, "we might be getting to the good stuff now." Jones then testified that an administrative forfeiture had taken place.

Testimony was also heard from Jaime Zea of the Illinois State Police Crime Laboratory. Zea is a level-three forensic scientist who tested the evidence. Zea identified evidence labeled as evidence inventory numbers 1865258 and 1865259, but referred to number 1865259 as 1863552 once during the testimony. Zea weighed evidence number 1865259, finding it to weigh 958 grams. Zea testified that the brick was cocaine with a 95% purity level. No testimony was presented as to any analysis done on the six bricks inventoried under number 1865258. Following closing arguments, the jury found Herrero guilty of possession of more than 900 grams of controlled substance. He was thereafter sentenced to 25 years in prison.


On appeal, Herrero raises several issues. Herrero argues that he was not proven guilty beyond a reasonable doubt because the prosecution failed to establish a continuous chain of custody of the alleged contraband. He also argues that the prosecution failed to connect him to the package that was tested and found to be cocaine. Herrero also argues that he was denied a fair trial when, during closing arguments, the prosecutor commented on Herrero's exercise of his right to a jury trial. Herrero claims this encouraged the jury to make negative inferences that were designed to prejudice his case. Herrero also argues that it was prejudicial and irrelevant that he did not contest the forfeiture of the automobile since the line of testimony and questioning was designed to encourage the jury to assume that Herrero made some tacit admission. This was compounded when the trial court suggested in front of the jury that this line of questioning was "getting to the good stuff." Herrero further argues that his fundamental rights were denied when jury selection was held without a Spanish interpreter. Even though Herrero voluntarily waived his right to an interpreter, he claims this waiver was not truly voluntarily made because the waiver discussion was also held in English, without benefit of a Spanish interpreter.

Finally, both Herrero and the prosecution agree that an error was made on the mittimus, which did not give him full credit for time he had already served. The prosecution does not contest Herrero's request for a recalculation.


We address each of defendant's contentions on appeal in turn. Herrero first challenges the sufficiency of the evidence by which he was convicted. He argues there were defects in the chain of custody of the alleged contraband and a failure to connect him to the package which proved to be actual cocaine. The prosecution responds that Herrero must show actual evidence of the tampering he alleges. The prosecution also responds that, even though six of the kilos recovered may not have been conclusively proven to be cocaine, there was a sufficient quantity of evidence that was proven to be cocaine so as to conclusively demonstrate that Herrero is guilty of possessing over 900 grams of a controlled substance with the intent to deliver.

A trial court has broad discretion in determining the admissibility of evidence, and we will not disturb its ruling on appeal absent an abuse of discretion and a showing of prejudice to the defendant. People v. Lind, 307 Ill. App. 3d 727, 740 (1999). Evidence is admissible if it is relevant to an issue in dispute and its probative value is not substantially outweighed by its prejudicial effect. Relevant evidence is evidence having any tendency to make the existence of a fact that is of consequence to the determination of an action more or less probable than it would be without the evidence. People v. Aguilar, 265 Ill. App. 3d 105 (1994).

The purpose of introducing the evidence and establishing the chain of custody is to connect the object, in this case drugs, to the defendant and the crime. People v. Lach, 302 Ill. App. 3d 593 (1998). The reason the State is required to prove the chain of custody was maintained is to negate the possibility of tampering or substitution, and, therefore, this requirement is applicable to demonstrative and real evidence that is easily subject to tampering or substitution without detection. Lach, 302 Ill. App. 3d at 593-94. The chain of custody must be of sufficient completeness to render it improbable that the item has been tampered with, exchanged or contaminated. To establish a sufficient chain of custody, the State needs to show that it took reasonably protective measures after the substance was seized and that it was probable the evidence was not changed in any important respect or substituted. Lach, 302 Ill. App. 3d at 593-94; People v. Bynum, 257 Ill. App. 3d 502, 510 (1994).

Once the State has established the probability that the evidence was not compromised, and unless the defendant shows actual evidence of tampering or substitution, deficiencies in the chain of custody go to the weight, not admissibility, of the evidence. Lach, 302 Ill. App. 3d at 593-94; Bynum, 257 Ill. App. 3d at 510; People v. Tsombanidis, 253 Ill. App. 3d 823, 833 (1992). Thus, even where there is a missing link in the chain of custody, trial courts have properly admitted evidence where there was testimony that sufficiently described the condition of the evidence when delivered which matches the description of the evidence when examined. Bynum, 257 Ill. App. 3d at 510. To establish a sufficient chain of custody, the State need not disprove every possibility that the evidence was tampered with. Rather, the State need only show that it was reasonably probable that the evidence remained unchanged in any important respect or was not substituted. Lind, 307 Ill. App. 3d at 740. In the absence of any tangible suggestion of tampering, alteration or substitution, it is sufficient if the State proves a reasonable probability that the article has not been altered. People v. Ryan, 129 Ill. App. 3d 915, 919 (1984).

The prosecution concedes that, with regard to the six kilos inventoried under evidence inventory number 1865258, it failed to establish that the substance tested was actually cocaine. The prosecution instead relies on the remaining evidence to support the conviction. It is the 958 grams of 95% pure cocaine bearing evidence inventory number 1865259 that it claims establishes Herrero's guilt of possession with intent to deliver. Absent a showing of actual evidence of tampering or substitution, the prosecution relies on the fact that discrepancies go to weight and not admissibility. Lach, 302 Ill. App. 3d at 594.

As to the brick with inventory number 1865259, the trial court relied upon the testimony of the forensic scientists in the crime lab and the police officers involved in the arrest to establish that the brick connected to Herrero is the same brick that proved to be cocaine. At one point in the direct examination, the prosecutor referred to the brick carried by Herrero as having inventory number 1863552 rather than 1865259. Prior to this, and after this, the prosecutor and witness referred to this brick as having inventory number 1865259. Further, at one point forensic chemist Zea testified that the box with inventory number 1865258 contained seven kilos rather than six kilos. However, Zea also testified that the contents matched the inventory report, which said the boxes contained six kilos, and Zea testified the contents consisted of six kilos. The trial court found credible the testimony that the evidence would not fit into envelopes and had to be placed in larger containers. In light of the evidence presented, any questions remaining about the chain of custody were properly attributed by the judge to weight and not admissibility.

A criminal conviction will not be set aside unless it is so improbable or unsatisfactory that a reasonable doubt as to the defendant's guilt still remains. People v. Lane, 319 Ill. App. 3d 162 (2001). When considering a challenge to a criminal conviction based upon the sufficiency of the evidence, it is not the function of this court to retry the defendant. People v. Hall, 194 Ill. 2d 305 (2000). The trier of fact is ...

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