The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Preston L. Bowie, Judge Presiding
Following a bench trial, defendant Dan Raney was convicted of possession of a controlled substance with intent to deliver (1.349 grams cocaine) and sentenced to eight years in prison. Defendant contends on appeal that the State failed to prove him guilty beyond a reasonable doubt of possession of a controlled substance with intent to deliver because the State failed to establish a proper foundation for the admission of the scientific results from the gas chromatography mass spectrometer (GCMS) machine. Defendant also contends, and the State concedes, that the mittimus incorrectly states that defendant was sentenced to nine years in prison and must be corrected to reflect the eight-year sentence of the court. We reverse.
On June 29, 1999, Officer Spanos and his partner were stopped by a citizen on Walnut and Kedzie in Chicago. The citizen gave them a description of a man allegedly selling drugs in the area. The officers began a surveillance of 3359 West Walnut. Officer Spanos testified that he saw the defendant engage in two drug transactions. The alleged buyer would approach the defendant, give him money and defendant would walk down a gangway to a plastic bag on a windowsill from which he obtained a small bag which he gave to the buyer. Officer Spanos then approached the defendant, who was engaged in a third sale, detained the defendant, and retrieved the 14 smaller bags from the windowsill containing a white, rock-like substance, suspect cocaine. During a custodial search, $50 was recovered from the defendant. Officer Spanos testified that the 14 bags were inventoried and sent to the Illinois State Crime Laboratory for analysis and testing.
Webelene Bethea, a forensic scientist at the Illinois State Crime Laboratory, tested the contents of People's exhibit No. 1, the 14 small plastic bags delivered to her in a sealed evidence envelope. Bethea first weighed the evidence and then conducted a cobalt thiocynate color test. According to Bethea, this preliminary test is similar to a field test. Bethea then performed a test with the GCMS machine and concluded that the substance in the 14 packets contained cocaine.
The defendant contested Bethea's expertise because "she's not a member of any forensic chemistry organization ***[;] she didn't even get a degree in chemistry." Over the defense objection, the trial court found that she was qualified as an expert and allowed her to testify. After the State rested its case, defendant moved for a directed finding based upon the chain of custody and lack of proper foundation for Bethea's opinion that the substance contained cocaine. The motion for directed finding was denied. Defendant rested. During closing argument defense counsel reiterated his contention that the State failed to prove defendant guilty beyond a reasonable doubt based on the lack of proper foundation for Bethea's opinion that the substance in the 14 packets contained cocaine. The trial court found defendant guilty of possession of a controlled substance with intent to deliver and sentenced defendant to eight years in prison.
In a controlled substance prosecution, the State must present sufficient evidence that the substance at issue is in fact a controlled substance. People v. Hagberg, 192 Ill. 2d 29, 34 (2000). A reviewing court may not substitute its judgment for that of the trier of fact on questions of the weight of the evidence, the credibility of the witnesses, or resolution of conflicting testimony. People v. Kotlarz, 193 Ill. 2d 272, 298 (2000). The defendant has the burden to demonstrate that the State's evidence is "so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt." People v. Collins, 106 Ill. 2d 237, 261 (1985); People v. Jones, 295 Ill. App. 3d 444, 452 (1998). The relevant inquiry is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89 (1979); People v. Sanchez, 115 Ill. 2d 238, 261 (1986). We find that the State failed to prove defendant guilty beyond a reasonable doubt based on the lack of proper foundation for expert Bethea's opinion that the substance in the 14 packets contained cocaine.
Defendant relies on People v. Bynum, 257 Ill. App. 3d 502 (1994), to support his contention that this court should find an insufficient foundation for the expert testimony of State forensic scientist Bethea. The defendant in Bynum, after being convicted of possession of 10 grams or less of a controlled substance, argued on appeal that the State failed to provide a proper foundation for the State's expert witness under Federal Rule of Evidence 703. Bynum, 257 Ill. App. 3d at 504, 513. The Illinois Supreme Court adopted Rule 703 of the Federal Rules of Evidence regarding expert testimony in Wilson v. Clark, 84 Ill. 2d 186, 193-95 (1981). Rule 703 states:
"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Fed. R. Evid. 703.
In adopting Rule 703, Wilson held that an expert may give his opinion based upon facts that are not in evidence if those facts are of a type reasonably relied upon by experts in the particular field. Wilson, 84 Ill. 2d at 193.
In Bynum, the State's expert did not testify that the GCMS machine was generally relied upon by experts in her field, failed to explain how the machine was calibrated, and did not testify how she knew the results from the GCMS machine were accurate. Bynum, 257 Ill. App. 3d at 514. Bynum concluded that the State failed to provide a sufficient foundation for the opinion of the expert witness under Rule 703. Bynum, 257 Ill. App. 3d at 514. The Bynum court noted that under Rule 703 an adequate foundation requires a showing that the facts relied upon by an expert are of a type reasonably relied upon by experts in the field. Bynum, 257 Ill. App. 3d at 513.
The Bynum court, further recognizing the need for reliable scientific testimony, identified an additional foundation requirement when expert testimony is based upon an electronic or mechanical device. Bynum, 257 Ill. App. 3d at 513-14, citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). The electronic or mechanical device used in Bynum was the GCMS machine and the court indicated, "when expert testimony is based upon an electronic or mechanical device such as that used here, the expert must offer some foundation proof as to the method of recording the information and proof that the device was functioning properly at the time it was used." Bynum, 257 Ill. App. 3d at 514. The court noted that the expert failed to explain how the machine was calibrated or why she knew its results were accurate and concluded the State's failure to establish the necessary foundation proof was therefore sufficient to preclude the expert's testimony from ...