Appeal from the Circuit Court of Cook County. No. 94 CR 26937 The Honorable William Maki, Judge Presiding.
The opinion of the court was delivered by: Justice Gordon
Following a bench trial, defendant Eduardo DeLuna (defendant) was convicted of two counts of possession of a controlled substance with intent to deliver and sentenced to 18 years in prison. He makes four contentions on appeal: (1) the trial court erred in denying his motion to quash arrest and suppress evidence; (2) his trial counsel's failure to move to suppress evidence seized from a car amounted to ineffective assistance; (3) he was not proven guilty beyond a reasonable doubt because the State failed to establish a proper foundation for the opinion given by the forensic chemist; and (4) he was not proven guilty beyond a reasonable doubt due to the State's failure to prove a continuous chain of custody of the evidence. Defendant asks that we reverse his conviction outright, or alternatively, reverse and remand the cause for a new trial. For the following reasons, we affirm.
Defendant's trial counsel filed a pretrial motion to quash defendant's arrest and suppress evidence of cocaine found on defendant's person. The following was adduced from that hearing.
Officer Glen Lewellen testified that at 6:15 p.m. on September 22, 1994, he, along with officers Walter Smith and Thomas Horton, was executing a search for drugs in the second-floor apartment of Jack Willison at 5727 South Kenton, pursuant to a warrant. Around that time, officer Lewellen received a radio call that a vehicle driven by a male Hispanic had pulled up to the apartment building. Officer Lewellen went to the back bedroom of the apartment, looked out the window, and from 25-30 feet away, saw defendant exit a red two-door 1988 Oldsmobile in the building's parking lot. Defendant had nothing in his hands. Officer Lewellen saw him reach into the rear of the car on the driver's side and emerge with a gray "brick-size kilo-type package" in his hands. Defendant lifted his shirt, put the package in the waistband of his pants, and placed his shirt over the package to conceal it. Officer Lewellen testified that he had seen "at least a thousand kilos of that type of packaging" before and, based on his experience, he believed it to be suspect cocaine. He also stated that he did not see a gun in defendant's possession. Defendant then walked away from the car and toward the building's entrance.
Officer Lewellen further testified that about 30 seconds later, defendant knocked on the door of the apartment he and his fellow officers were searching. After one of the other officers opened the apartment door, officer Lewellen conducted a pat-down search of defendant in the hallway. Officer Lewellen recovered a gray brick package, which he described as 2 to 3 inches thick, 8 to 12 inches long, and 2 to 3 inches wide. He testified that he poked a hole in the package to check its contents, whereupon he confirmed that it contained suspect cocaine. Defendant was then arrested and the officers brought him downstairs to the parking lot.
Officer Lewellen testified that he approached the red, two-door 1988 Oldsmobile and looked inside, but did not see any contraband from his vantage point. He opened the driver's side door and saw a panel behind the seat that was somewhat ajar. Inside that panel, he recovered another gray brick package, a .25 caliber firearm with five live rounds, a scale and plastic bags. Officer Lewellen then noticed that there was another panel in the rear passenger side of the car; that panel was locked. Upon opening it, he found a large clear plastic bag containing a white chunky substance, five smaller bags containing a white substance and $4,370 in cash.
In deciding whether to grant defendant's motion to quash his arrest and suppress the evidence found on his person, the court found that there were "reasonable articuable [sic] facts" for the pat-down search based both on case law and "plain view"-officer Lewellen's observations and the fact that defendant arrived at an apartment in the midst of being searched for drugs pursuant to a warrant. The court went on to also discuss the evidence found in the car, and stated that it did not "see sufficient facts here" to justify the search and the officers' failure to obtain a warrant. It commented that it would consider suppressing this evidence because it did not "know of any exception to the search warrant that would have allowed them to search that vehicle."
At a subsequent hearing date, defense counsel pointed out to the court that the motion to suppress was limited to the evidence found on defendant's person and did not cover what was found in the car. The court recognized its confusion and, though it now believed the search of the car was proper, stated that its reference to the car was "really a moot point because [defendant was] not really raising that argument." Accordingly, it denied the motion to quash defendant's arrest and suppress the evidence found on his person.
The cause then proceeded to trial. Officer Lewellen testified, much in the same manner as he did at the pretrial hearing. He again stated that in his 10 years of experience, he had seen these type of brick packages many times before and that they were suspect cocaine. He also testified that while he did not see defendant with a gun outside the apartment building, he conducted the pat-down search for "safety" reasons. He felt a bulge in defendant's waistband, removed the brick package, and continued the "protective pat-down search" of defendant. In addition to the brick package, he found a pager and a set of keys on defendant's person and used these keys to open the car in the parking lot. He and officer Smith, who was able to pop open the locked panel in the passenger side of the car, gave all the evidence retrieved from both defendant's person and the car to officer Horton, who inventoried it and brought it back to the police station.
Officer Horton corroborated much of officer Lewellen's testimony. While executing the search warrant at the apartment, he heard defendant knock on the door. He opened the door and officer Lewellen conducted a pat-down search of defendant. Officer Horton took the gray brick package officer Lewellen found in defendant's waistband, put it in an evidence bag, sealed it and labeled it with defendant's name. Officer Horton at first testified that he did not field test the contents of the package and that he did not puncture its wrapping. He later testified that, while he did not poke a hole in the brick, he may have looked inside it by lifting the wrapping. After the search of the car was completed, he brought all the evidence back to the police station, inventoried it, and weighed the brick packages with their wrapping. He then recorded their weights on inventory sheets: the package found on defendant's person weighed 1,084 grams and the package found in the car weighed 1,743 grams. Officer Horton sealed all the evidence bags and put them in the crime lab's vault. When asked if all the evidence he collected at the scene was present at trial, officer Horton noted that while the two cocaine brick packages, gun, clip, bullets, money and plastic bags were there, the scale, pager and other plastic bags were not.
Dr. Arthur Kruski, the forensic chemist who tested the brick packages, also testified. The parties stipulated that he was an expert in the analysis of controlled substances. Dr. Kruski stated that he first tested the package found on defendant's person. Though he could not remember who gave him the evidence bag from the secured, locked lab vault, he did notice that the bag was sealed. He also verified the contents and the evidence numbers according to the attached inventory sheets. Dr. Kruski testified that the brick package was completely sealed; it had not been punctured or opened. He stated that the package's dimensions were eight to nine inches wide by eight to nine inches long by one to one-and-a-half inches thick. He then described how he weighed the evidence. He removed the gray duct tape and plastic wrappings from the package and placed it on a scale that he has used thousands of times and is periodically calibrated. Defense counsel stipulated that the scale is in good repair. Without the wrappings, the package weighed 983 grams. Dr. Kruski then performed five preliminary tests on the package and described each one. Three of these tests positively indicated the presence of cocaine. Dr. Kruski also performed a definitive confirmative test: a gas chromatography mass spectrometer (GCMS) test. He testified that the GCMS machine was "daily tuned." This test too indicated the presence of cocaine. Dr. Kruski testified that he also ran blank GCMS tests to corroborate these results. Based on all this, Dr. Kruski opined that the brick package found in defendant's waistband contained cocaine.
Dr. Kruski further testified that he followed this same procedure when later testing the brick package retrieved from the car. Again, the evidence bag containing the package was sealed and Dr. Kruski verified its contents with the inventory sheets. He removed the package's wrapping and, along with the five plastic bags of white powder, weighed them for a total of 1,629.7 grams. He then performed the same five preliminary tests on the package and each of the plastic bags, and the results were the same. He also performed the GCMS test on these items and obtained the same result. Again, Dr. Kruski testified that based on all this, it was his opinion that the brick package and the plastic bags from the car all contained cocaine.
Defense counsel moved for a directed finding arguing that the State had failed to prove a sufficient chain of custody for the evidence due to the discrepancies in the weight of the brick packages, and that it failed to provide a proper foundation for Dr. Kruski's opinions because it had not shown the "scientific efficacy" of the GCMS machine. The court denied the motion.
As the trial continued and defense counsel presented its case-in-chief, it questioned officer Lewellen as to some discrepancies in his trial and pretrial testimony. Specifically, officer Lewellen was asked about his testimony regarding the dimensions of the brick package he recovered from defendant's person in relation to that of Dr. Kruski, who had testified about the package's size while the evidence was in court. In explaining the size discrepancy, officer Lewellen stated that he had been testifying as to the package's approximate size, and because he did not have the package in front of him when he so testified, he had erred. Moreover, defense counsel asked him about his prior testimony that he had poked a hole in the package he retrieved from defendant's person during the pat-down search, while Dr. Kruski had testified that the package was completely sealed when he received it for testing. Officer Lewellen stated that he had not poked a hole in the package but he believed officer Horton had done so.
Finally, defendant testified on his own behalf. He stated that he went to the apartment that day because he was considering renting it from Willison. He testified that he arrived in the neighborhood by means of public transportation and then walked the rest of the way to the apartment building. He rang the doorbell, was let inside and went up to the second floor. Defendant testified that police officers opened the apartment door, forcefully dragged him inside, handcuffed him, placed him in a choke hold and searched him. He further testified that the officers then put him in a squad car and took him to the station. He insisted that he did not have a brick package in his waistband or cocaine anywhere on his person; the officers took his pager, wallet and two sets of keys from his pants. He also testified that the red two-door 1988 Oldsmobile in the parking lot was not his and that he was taken away before it was searched.
At the conclusion of trial, the court found, based on the evidence and its observation of the witnesses, that the State had proven defendant guilty beyond a reasonable doubt of two counts of possession of a controlled substance with intent to deliver. It noted that it was considering both quantities: the amount found on defendant's person and that found in the car, of which it believed defendant had constructive possession. It sentenced defendant to 18 years in prison.
As noted, defendant presents four arguments on appeal in support of his contention that reversal or a new trial is ...