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People v. Durgan

March 30, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MAURICE DURGAN, DEFENDANT-APPELLANT.



[6] Appeal from Circuit Court of Vermilion County No. 01CF60 Honorable Craig H. DeArmond, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Steigmann

[8]  In August 2002, a jury convicted defendant, Maurice Durgan, of (1) one count of possession of a substance containing cocaine (720 ILCS 570/402(c) (West 2000)) and (2) one count of possession of more than 1 gram but not more than 15 grams of a substance containing cocaine with intent to deliver (720 ILCS 570/401(c)(2) (West 2000)). In October 2002, the trial court sentenced him to eight years in prison on the possession-with- intent-to-deliver conviction. (The court did not enter judgment on the other conviction, having determined that it merged into defendant's conviction for possession with intent to deliver.)

[9]  Defendant appeals, arguing that (1) the stipulated testimony of a forensic chemist was inadequate to establish that (a) an adequate foundation existed for the chemist's testimony and (b) the chemist tested all of the individually wrapped packets of cocaine found in defendant's possession; (2) the State did not establish a proper chain of custody for the seized cocaine; (3) the trial court erred by (a) replacing a sick juror with an alternate juror after the jury began deliberating and (b) relying on evidence outside the record in denying his posttrial motion; (4) the State failed to prove him guilty beyond a reasonable doubt; and (5) he received ineffective assistance of trial counsel. We disagree and affirm.

[10]   I. BACKGROUND

[11]   In February 2001, the State charged defendant with (1) one count of possession of a substance containing cocaine (720 ILCS 570/402(c) (West 2000)) and (2) one count of possession of more than 1 gram but not more than 15 grams of a substance containing cocaine with intent to deliver (720 ILCS 570/401(c)(2) (West 2000)).

[12]   Following an October 2001 trial, a jury convicted defendant of both charges. In November 2001, defendant filed a motion for a new trial. At a January 2002 hearing on that motion, defense counsel argued facts from a different case. The trial court then sua sponte found that defense counsel provided ineffective assistance and granted defendant's motion for a new trial.

[13]   At the start of defendant's August 2002 retrial, the bailiff informed the trial court that one of the jurors (referred to in the record only as Mr. Gilpin) had been sick the previous night. The bailiff instructed Gilpin to let the court know if he felt sick, and the court proceeded with defendant's trial.

[14]   Danville police officer Troy Wasson testified that he had (1) been an officer since 1996, (2) attended five training seminars on drug enforcement, and (3) been involved in at least 50 drug cases. Around 3 p.m. on December 15, 2000, he went to an apartment located at 915 Redden Court in Danville to execute a search warrant. While Wasson and other officers waited outside the apartment for the "target person" (an individual other than defendant) to arrive, Wasson saw defendant standing either just outside or in the front doorway. When the officers approached the apartment to begin the search, defendant yelled "police" and went inside the apartment. Officers arrested defendant and six other individuals as they left the apartment through its back door and later took them to the Danville public safety building. Officers searched the apartment and found cannabis and cocaine.

[15]   When Wasson arrived at the public safety building, Danville police officer John Thompson handed him a clear plastic bag that contained individual packages (plastic Baggie corners that were tied off) containing a substance that the officers suspected was crack cocaine. (Thompson found the plastic bag in a trash can near where defendant had been sitting in the "book-in" area prior to being searched.) Although Wasson initially testified that the plastic bag contained 19 individually wrapped packages, he later testified that it contained either 18 or 19 individually wrapped packages. Wasson secured the plastic bag containing the individually wrapped packages and later handed it to Danville police officer Ron Soderstrom, who processed it as evidence. Wasson denied tampering with the plastic bag.

[16]   Wasson opined that the individually wrapped packages were intended for sale. He explained that based on his training and experience, "a normal user or addict of crack cocaine wouldn't carry that amount of crack cocaine on them." Wasson stated that he would not change his opinion if the larger plastic Baggie contained 18 individually wrapped Baggies, not 19.

[17]   Thompson testified that after officers transported defendant to the public safety building, Thompson sat him on the floor beside a bench, where three other individuals were handcuffed. Thompson and a correctional officer then escorted the individuals, including defendant, one by one to another room and searched them. Thompson then searched the book-in area. At the top of the trash in a trash can that was located about 3 1/2 feet from where defendant had been sitting, Thompson found a clear plastic bag that contained several individually wrapped packages of an "off-white[,] rock-like substance." Thompson took the bag as evidence and gave it to Wasson. He had the bag for only a couple of minutes, just long enough to walk up one flight of stairs and hand it to Wasson. Thompson denied counting the individual packages or tampering with the plastic bag.

[18]   Soderstrom testified (through the trial court's admission of a transcript of his testimony at defendant's first trial) that when items are recovered, officers immediately label them with the time, location, and the name of the officer who recovered them. On the day Wasson gave him the plastic bag, Soderstrom weighed it, filled out an inventory tag describing the bag and its contents, and placed the plastic bag in a paper bag. He then labeled the paper bag with the December 15, 2000, recovery date, the police report number, his and Wasson's badge numbers, sealed it, initialed the label, and placed the paper bag in an evidence locker. Soderstrom placed the key to that evidence locker, along with a yellow duplicate inventory tag, in another locker, to which only the evidence officer had access. He identified People's exhibit No. 1 as the paper bag that contained the clear plastic bag containing individually wrapped packages. Soderstrom explained that he recognized his handwriting on the property tag and recalled filling out that tag for that specific piece of evidence on December 15, 2000.

[19]   Danville police officer Larry Thomason, the evidence officer, testified that when an officer recovers an item, he places it in an appropriate-sized container and seals the container. The officer places various identifying markings on the container and attaches a property tag (1) indicating the police report number, the name of the officer, and the offense and (2) describing the contents of the container. The officer then places the container in an evidence locker and puts the locker key in another locker, to which only Thomason and his assistant have access.

[20]   Thomason identified People's exhibit No. 1 as the paper bag that contained the clear plastic bag containing individually wrapped packages. He also identified a white form with a red sticker on it that was attached to exhibit No. 1 as the inventory tag. A yellow duplicate of that inventory tag was attached to the locker key for the locker in which People's exhibit No. 1 had been stored. On December 19, 2000, Thomason retrieved the paper bag (People's exhibit No. 1) from the evidence locker, took it to the evidence room, and placed it in a storage bin. When he retrieved the paper bag, it was sealed, and the white inventory tag was attached to it with staples. Thomason entered the information from the inventory tag into a computer program that tracked the evidence's whereabouts. On December 27, 2000, he wrote the date and his initials on the paper bag and sent it to the Illinois State Police crime laboratory by certified mail. When Thomason placed it in the mail, the paper bag was still sealed. On February 1, 2001, he picked up the bag from the crime laboratory and returned it to the original storage area in the public safety building. When Thomason picked up the bag, it was sealed with blue tape from the laboratory. Thomason denied opening the paper bag or tampering with it.

[21]   The testimony of Kristin Stiefvater, an Illinois State Police forensic chemist, was presented via a stipulation that the parties agreed upon and the trial court accepted. That stipulation, which the prosecutor read to the jury, provided as follows:

[22]   "[Stiefvater] would testify that she is a trained, experienced forensic scientist in the Springfield [c]rime [l]aboratory.

[23]   That on December 28th, 2000, she received People's [e]xhibit [No.] 1 in a sealed condition.

[24]   That she tested the contents of People's [exhibit No.] 1.

[25]   That she determined People's [exhibit No.] 1 to contain 18 plastic [B]aggies.

[26]   Contents of the plastic [B]aggies contained 1.8 grams of off-white chunk substance, being the net weight of chunky substance, cocaine being present as the base[,] in her opinion, based upon her training and testing and experience.

[27]   That after testing People's [e]xhibit [No.] 1 and its contents[,] she resealed it and returned it to [Thomason] in a sealed condition."

[28]   Danville police officer Mike Cox testified that on the evening of December 15, 2000, he interviewed defendant at the public safety building. After waiving his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), defendant told Cox that earlier that day, he had been at 915 Redden Court to "chill[] out" and do "a little gambling." Defendant admitted that when officers arrested him and took him to the book-in area, he had a "real skinny, rolled up blunt" in his jacket pocket and a "few bags" of crack cocaine hidden in his underwear. While sitting in the book-in area, he threw the cocaine in a nearby trash can. He told Cox that he used cocaine "every blue moon" and the cocaine he threw in the trash can was for his personal use. Specifically, defendant used the cocaine to make a "premo blunt." Cox explained that (1) a "blunt" is made by cutting a cigar lengthwise, removing the inner tobacco and replacing it with cannabis, and then rolling the outer tobacco leaves back together so that it looks like a thinner cigar; and (2) a "premo" blunt is one that has been laced with cocaine.

[29]   On this evidence, the State rested, and defendant presented no witnesses. After the trial court instructed the jury, it asked Gilpin if he was well enough to participate in deliberations. Gilpin responded that he felt well enough, and at 11:45 a.m., the court instructed the jury to leave the courtroom and begin deliberations. The court also asked the alternate juror (referred to in the record only as Ms. Lewis) to stay in the courtroom. The following discussion then took place outside the jury's presence:

[30]   "THE COURT: Okay. Ms. Lewis, normally I would discharge you completely from further service since we have the other 12 that are going back to begin deliberations. What I'd like to do, however, in your particular case[,] is I'm going to release you, but I'm going to ask that you still not talk with anyone about the case. Leave your notebook here. There is the remote possibility that we would then re-enlist your services if[,] for some reason[,] Mr. Gilpin cannot make it through deliberations.

[31]   All right. So although you'll be released to leave and, in fact, if--what we could do is since we're going to be probably ordering lunch if you want to wait here we'll get lunch for you as well. And you're welcome to have that lunch. You can't eat with the rest of the jurors or anything like that, but we can put you somewhere else.

[32]   MS. LEWIS: Okay.

[33]   THE COURT: We'll just ask that you not talk with anyone about the case or discuss the case in any way until we know whether they are able to reach a verdict and whether Mr. Gilpin is going to be able to complete his service, because if he's not[,] then there is that possibility that you would have to go in and begin [sic] part of deliberations.

[34]   Any other instructions that counsel wishes for Ms. Lewis?

[35]   [PROSECUTOR]: Just that she leave with the clerk some way of contacting her if we need her.

[36]   THE COURT: We need a telephone number, cell phone number, something.

[37]   MS. LEWIS: I don't have a telephone. I live in Georgetown, so I'll stay here.

[38]   THE COURT: If you'll leave your telephone number[,] then when the clerk--

[39]   MS. LEWIS: I can just go home you mean?

[40]   THE COURT: Sure.

[41]   MS. LEWIS: Okay. Okay.

[42]   THE COURT: You're welcome to wait here till lunch is delivered and have lunch, if you wish, or you're welcome to take it with you and then go home, but it's just a little unusual. Mr. Gilpin said he's indicated he was sick all last evening. And if there is the possibility that he's not going to be able to complete service then ...


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