Appeal from the Circuit Court of Cook County. Honorable Catherine M. Haberkorn, Judge Presiding.
The opinion of the court was delivered by: Justice Hoffman
While on probation, the defendant, Shelton Moore, was charged with delivery of a controlled substance within 1,000 feet of a church, delivery of a controlled substance within 1,000 feet of a school, and delivery of a controlled substance. Subsequently, the State filed a petition alleging that the defendant had violated the terms of his probation by committing the offense of delivery of a controlled substance. In consolidated proceedings, the trial court, at the end of the State's case-in-chief, granted the defendant's motion for a directed finding as to the charges for delivery of a controlled substance within 1,000 feet of a school or church. Following closing arguments, the trial court found the defendant not guilty of delivery of a controlled substance, but found him guilty of violating his probation. The trial court revoked the defendant's probation and sentenced him to a prison term of three years. On appeal, the defendant contends that: (1) the evidence was insufficient to prove that he violated his probation by committing the offense of delivery of a controlled substance; (2) his trial counsel was ineffective for failing to object to the consolidation of the trial on the delivery charges with the hearing on the petition to revoke probation; and (3) his sentence should be vacated because he was sentenced without a presentence investigation report. For the reasons which follow, we reverse.
On April 8, 1999, the defendant pled guilty to delivery of a controlled substance in case number 99 CR 3865, and was placed on probation for 24 months. While on probation, on January 30, 2000, the defendant was charged with delivery of a controlled substance under case number 00 CR 5935. On April 3, 2000, the State filed a petition for violation of probation, in which it alleged that the defendant had violated his probation in case number 99 CR 3865 by committing the offense of delivery of a controlled substance with which he was charged in case number 00 CR 5935. *fn1
The defendant and co-defendant Barry Miller were tried jointly in a bench trial on the charges of delivery of a controlled substance. The following evidence was presented at trial. Chicago police officer Jeffery Adamik testified that, on January 30, 2000, he was working undercover near 5702 North Winthrop Avenue in Chicago when he approached Miller and asked if he had any cocaine. Miller stated he did not have any cocaine, but then motioned over to the defendant, who was standing nearby. Officer Adamik and Miller walked over to the defendant, who then took the officer to an alley. The defendant asked the officer "how much," and Adamik responded, "I need one." At that point, the defendant removed a clear plastic bag containing a substance which the officer suspected to be crack cocaine from his mouth, and handed it to Officer Adamik in exchange for a $10 bill, the serial number of which had been recorded. Officer Adamik then signaled to his backup police officers that he had made a narcotics purchase. When asked if he inventoried the item he received from the defendant, Officer Adamik replied "yes." No further testimony was elicited about the chain of custody of the contraband.
Chicago police officer Jonathan Way testified that, after receiving a radio transmission from Officer Adamik providing a description of the offenders, he arrested the defendant and recovered the prerecorded $10 bill, which Officer Adamik then inventoried. After Officer Way testified, the following colloquy took place:
"MS. O'MALLEY [prosecutor]: *** There would be a stipulation by and between the parties that the chain of custody is in tact [sic]. That were Star Cirks, C-i-r-k-s, called to testify, she would testify she is a forensic scientist with the Illinois State Police, who analyzed the substance in the instant case to be point one gram of cocaine from one plastic bag, that was inventoried under No. 2293629."
With that, the State would rest.
MR. RUSNAK [defense counsel]: Your Honor, we would stipulate that forensic scientist Star Cirks tested an item that had been inventoried under 2293629, and that tested positive for cocaine. That's what we would stipulate to."
After the State rested, defense counsel immediately made a motion for a directed finding, arguing, inter alia, that the State had not proven a sufficient chain of custody because it presented no testimony showing that the item inventoried by Officer Adamik was the same item tested by the forensic scientist. In response, the State argued that Officer Adamik did testify that he had inventoried the item. The trial court granted the motion for directed finding as to the charges for delivery of a controlled substance within 1,000 feet of a school or church, but denied the motion on the charge for delivery of a controlled substance. The defense rested without presenting any evidence.
During closing arguments, defense counsel reiterated his argument about the insufficiency of the chain of custody. Following closing arguments, the trial judge, noting that both the violation of probation and the charge for delivery of a controlled substance were pending before it and involved the same facts, asked the prosecutor if she wanted a ruling on both cases simultaneously. The prosecutor acquiesced to a simultaneous ruling on both cases, and defense counsel did not object. Thereafter, the trial court found the defendant guilty of violating his probation, but not guilty of delivery of a controlled substance. The trial court then found that the defendant's probation was terminated unsatisfactorily and sentenced him to three years in prison. The defendant now appeals the trial court's order revoking his probation.
The defendant first contends that the State failed to prove that he violated the terms of his probation. The defendant does not contest that the commission of the offense of delivery of a controlled substance constitutes a violation of probation, given that one of the conditions of his probation was that he not violate any criminal statute. Rather, he argues that the State did not prove that he committed that offense because Officer Adamik's testimony was insufficient to establish a proper chain of custody linking the substance recovered from him to the substance tested by the forensic scientist.
The State must prove a violation of probation by a preponderance of the evidence. 730 ILCS 5/5-6-4(c) (West 2000). When the trial court finds that a violation has been proved, this court will reverse only if the finding is against the manifest weight of the evidence. People v. Leigh, 45 Ill. App. 3d 563, 565 (1976).
When contraband is sought to be introduced, it is the State's burden to establish "'a chain of custody of sufficient completeness to render it improbable that the [evidence] has been tampered with, exchanged, or contaminated.'" People v. Gibson, 287 Ill. App. 3d 878, 880-81 (1997), quoting People v. Terry, 211 Ill. App. 3d 968, 973 (1991). The State must show that the police took reasonable protective measures to ensure that the substance taken from the defendant was the same as the substance tested by the forensic chemist. People v. Ryan, 129 Ill. App. 3d 915, 919 (1984). This requires proof of delivery, presence, and safekeeping. Gibson, 287 Ill. App. 3d at 882. Unless the defendant produces evidence of actual tampering, substitution, or contamination, the State is only required to establish that reasonable protective measures were employed to protect the evidence from the time that it was seized and that it is improbable that the evidence was altered. People v. Bynum, 257 Ill. App. 3d 502, 510 (1994). Once the State has done so, the evidence is admissible and any remaining deficiencies in the chain of custody merely go to the weight of the evidence. People v. Pettis, 184 Ill. App. 3d 743, 753-54 ...