Appeal from the Circuit Court of Cook County Honorable Henry R. Simmons, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
Following a bench trial defendant was found guilty of one count of possession of a controlled substance with intent to deliver. The trial court sentenced defendant to seven years in the Illinois Department of Corrections. On appeal, defendant challenges the sufficiency of the evidence and contends the stipulated facts, together with the entire trial record, fail to establish a complete chain of custody for the controlled substance.
The State called Officer McCarthy as a witness and introduced additional evidence through two stipulations. McCarthy testified that around 9:45 p.m. on January 22, 2000, near 4936 West Huron Street, he observed defendant with the aid of binoculars. During a five-minute surveillance McCarthy saw four individuals approach defendant, engage in a brief conversation, and give defendant money. Defendant placed the money in his pants pocket and gave a small object to each individual. When McCarthy was about 15 feet away, defendant looked in his direction and threw a number of small plastic bags to the ground. McCarthy recovered from the ground nine small plastic bags containing what he suspected to be cocaine. Defendant was arrested. McCarthy searched defendant and recovered $190 from his pants pocket. McCarthy testified that he later inventoried the nine small plastic bags under inventory number 2295494 and the money under inventory number 2295495. The Nash School was located about one block away.
The State offered two stipulations agreed to by defense counsel. By way of stipulation it was agreed that if Investigator Tansy were to testify he would state that he measured the distance from 4936 West Huron Street to the Nash School and found it was 742 feet. It was further stipulated that if forensic scientist Maureen Duffy were to testify she would state that she received nine items under inventory number 2295494 and tested five of the nine items, which she found contained 1.2 grams of cocaine.
Defendant and Lonniece Young-Frazier testified in the defense case. Frazier testified that she knows defendant, but does not know him personally. On January 22, 2000, between 9 p.m. and 10 p.m., she was a passenger in a car in front of 4935 West Huron Street. She saw the defendant walking westbound on the north side of Huron Street when two uniformed officers, a male and female, approached him. Defendant put his hands up in the air. Frazier testified that she did not see defendant drop anything on the ground and did not see anyone passing objects for money. She testified that the officers searched defendant, handcuffed him, and placed him in the police car. Frazier testified that the male officer had a flashlight and was looking on the ground all over the area, including under porches two or three houses away.
Defendant testified that he was walking home from the store after playing the lottery. He was on the north side of Huron Street. Officer McCarthy and a female police officer pulled up in a marked squad car. Defendant denied he had anything in his hands or dropped anything; he denied selling drugs or possessing any drugs. Defendant stated that McCarthy searched him, found money, and told the female officer that defendant must be doing something. Defendant was handcuffed and placed in the squad car. McCarthy searched the area with a flashlight. Defendant testified that when McCarthy got into the car he showed defendant a plastic pouch and then drove to the police station.
Defendant stipulated to certain facts at trial. Generally, a defendant is precluded from attacking any facts previously agreed to in a stipulation. Defendant does not attack the specific facts agreed to in the stipulation. Defendant, relying on In re R.F., 298 Ill. App. 3d 13, 16 (1998), challenges the sufficiency of the evidence and argues that the stipulated facts, together with the entire trial record, fail to establish a sufficiently complete chain of custody.
When a defendant challenges the sufficiency of the evidence, the relevant inquiry is whether, after viewing 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. Cox, 195 Ill. 2d 378, 387 (2001). A challenge to the sufficiency of the evidence is not subject to the waiver rule and may be raised for the first time on direct appeal. People v. Enoch, 122 Ill. 2d 176 (1988).
Before real evidence may be admitted at trial, the State must provide an adequate foundation either by way of live testimony or stipulation which establishes that the item sought to be introduced is the actual item involved in the alleged offense and that its condition is substantially unchanged. People v. Cole, 29 Ill. App. 3d 369, 375 (1975). Where an item possesses unique and readily identifiable characteristics and its substance is relatively impervious to change, testimony at trial that the item sought to be admitted in evidence is the same one recovered and in substantially the same condition as when recovered is sufficient to establish an adequate foundation. People v. Gilbert, 58 Ill. App. 3d 387, 384 (1978). If the item is not readily identifiable or if it is susceptible to alteration by tampering or contamination, its chain of custody must be established by the State with sufficient completeness to render it improbable that the original item has either been exchanged, contaminated, or subjected to tampering. People v. Winters, 97 Ill. App. 3d 288, 289 (1981).
The character of the item determines which method for laying an adequate foundation must be used. People v. Graves, 107 Ill. App. 3d 449, 454 (1982). Based on the character of the evidence in this case, the chain of custody must be established by the State with sufficient completeness to render it improbable that the original item has either been exchanged, contaminated, or subjected to tampering. Thus, the State was required to establish a chain of custody to demonstrate the connection between the items recovered from the ground by Officer McCarthy after discarded by defendant and the items tested by forensic scientist Maureen Duffy.
Regarding that connection, the record contained the testimony of Officer McCarthy and the stipulated testimony of forensic scientist Maureen Duffy. The testimony of Officer McCarthy on direct examination by the State regarding recovering and handling the controlled substance was as follows:
"Q: What happened as you were approaching the defendant?
A: He looked in my direction, and he threw to the ground numerous plastic bags. I recovered these bags and found them to be nine clear, plastic bags each containing white, rocky ...