Appeal from the Circuit Court of Cook County. The Honorable Arthur F. Hill, Jr., Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Garcia
PRESIDING JUSTICE GARCIA delivered the opinion of the court.
Following a jury trial, the defendant was convicted of two counts of possession of a controlled substance and sentenced to seven years' imprisonment. The defendant contends the evidence was insufficient to prove he possessed at least 15 but less than 200 pills of methylenedioxymethamphetamine (MDMA or ecstacy) and at least 5 but less than 15 grams of methamphetamine, where the forensic chemist commingled each pill and powder before testing for the presence of each controlled substance. The defendant also challenges the imposition of certain fees and fines, contending some should be offset by the daily $5 presentencing custody credit he earned.
We reduce the defendant's convictions to the lowest class for each offense; the State failed to prove the essential elements of quantity of MDMA pills and weight of methamphetamine because the testing method employed by the chemist rendered her quantity and weight findings speculative. We affirm the imposition of the $200 DNA analysis fee and the $25 court services fee, but vacate the $5 court system fee. Based on his days in presentencing custody, the defendant is entitled to $1,970 credit against all fines (but not fees) imposed. We remand for a new sentencing hearing.
The defendant was arrested with a bag containing suspected narcotics in the form of 24 pills and some loose powder according to the arresting officer. The defendant was indicted on two counts: one count of possession with intent to deliver more than 15 but less than 200 pills of MDMA, and one count of possession with intent to deliver at least 5 but less than 15 grams of a substance containing methamphetamine, based on the crime lab results. A jury found the defendant not guilty of intent to deliver, but guilty of possession of each controlled substance in the quantity and weight charged in the indictment. He was sentenced to seven years' imprisonment.
Chicago police officer Thomas Krob testified that on August 29, 2008, at approximately 10:30 p.m., while on patrol in a marked squad car with his partner, Officer Phil Schulter, he observed a 1991 blue Buick Regal being driven on Roosevelt Road in Chicago without headlights. The officers conducted a traffic stop of the vehicle at a gas station located at Roosevelt and Independence. Officer Krob approached the driver's side of the Buick. The defendant was behind the steering wheel. When Officer Krob asked the defendant for his driver's license and insurance, he replied he had neither. The defendant was told to exit the vehicle. When he exited, Officer Krob observed a clear plastic bag containing multicolored pills fall to the ground from the defendant's lap. Officer Krob recovered the bag and handed it to his partner. The defendant was taken into custody for the traffic offenses. Officer Krob testified that after being advised of his Miranda rights, the defendant admitted he paid $175 for 25 pills near the 5400 block of West Congress. The defendant told Officer Krob he planned to host a house party with the pills in Palos Heights.
Officer Schulter inventoried the bag of pills under inventory number 11415252; the bag was sealed and sent to the forensic services division of the Illinois State Police. Officer Schulter testified he never took the pills out of the bag, but manipulated the pills in the bag to count them. He testified he counted 24 pills and observed a small amount of powder.
In a motion in limine, defense counsel challenged the forensic evidence regarding the pills. According to the motion, the State sought to introduce, as evidence of the controlled substances, the weight and quantity of untested pills as well as those tested. Defense counsel argued that to link untested pills to tested pills, all pills had to be homogeneous. The pills, however, were of different colors, bearing different markings.
The court denied defense counsel's motion.
Amanda Shanbaum, a forensic scientist with the Illinois State Police, testified as an expert witness that she analyzed the pills and powder recovered from the defendant for the presence of a controlled substance. She received a knotted plastic bag with inventory number 11415252. She cut the bag open and placed the contents on a clean plastic weigh dish. She observed 21 pills, 3 pill fragments, and some powder. Ms. Shanbaum testified that the bag contained red and orange powder and pills and fragments of five different colors: three yellow pills with a "win" imprint; four lavender pills with a logo of a dancing man; six orange pills with a "win" imprint and two orange pills shaped like the Superman logo; four red pills with an unclear imprint, two red pills shaped like the Superman logo and a red pill chunk; and two chunks of green pills with a red crust.
Ms. Shanbaum testified that all of the pills were soft and crumbled when touched. She testified that as they crumbled, powder from all of the pills mixed together. She explained that all of the pills were touching each other and that they were all covered in powder. Ms. Shanbaum testified the pills, pill fragments, and powder collectively weighed 6.3 grams. She completed a crime lab discrepancy form because the bag contained 21 pills and 3 pill fragments, rather than 24 pills as listed on the inventory sheet.
Ms. Shanbaum testified she performed four preliminary tests on the contents of the bag to confirm the presence of a narcotic. The first three tests indicated the presence of a hallucinogen and the final test indicated the presence of methamphetamine.
Ms. Shanbaum testified that her next step was to create a "representative sample" of the contents of the bag upon which to perform conclusive tests. To get a representative sample, Ms. Shanbaum poked each pill with a glass tip and added the resulting powder to a gathering dish, along with some of the powder from the bag. Ms. Shanbaum testified she believed she tested each pill because a portion of each pill was crumbled into the representative sample mix from which she took the smaller testing sample. She testified she was not able to distinguish the powder of one pill from the powder of any other.
Ms. Shanbaum next performed a gas chromatography flame ionization detection test on the representative test sample, which indicated the presence of methamphetamine and MDMA. She then performed the gas chromatography mass spectrometry test, which confirmed that both methamphetamine and MDMA were present in the representative test sample. Based on the results of these tests, Ms. Shanbaum opined that the 21 pills, 3 pill fragments, and powder weighed 6.3 grams and contained MDMA and methamphetamine.
Following Ms. Shanbaum's testimony, the State rested.
Defense counsel moved for a directed finding, contending insufficient proof of the charged offenses was offered on the respective element of weight and quantity. Specifically, counsel argued the State failed to prove the defendant possessed 15 or more pills of MDMA because it was unknown how many pills actually contained MDMA given that the tests were performed on the representative sample, which contained powder from the various nonhomogeneous pills. Counsel further argued there was insufficient evidence of intent to deliver. The motion was denied.
The jury found the defendant not guilty of possession with intent, but guilty of straight possession of at least 15 but less than 200 pills of MDMA, and of at least 5 but less than 15 grams of methamphetamine.
In the motion for a new trial, the defense counsel challenged the trial court's ruling on his motion in limine. Defense counsel argued Ms. Shanbaum improperly mixed the pills into one representative sample. Defense counsel contended that Ms. Shanbaum should have tested each of the different types of pills independently to determine whether each identifiable group contained MDMA and methamphetamine. Defense counsel also argued it was error, based on the faulty representative sample, to allow Ms. Shanbaum to testify that the total weight of the bag's contents of 6.3 grams supported the weight element on the methamphetamine count. The trial court denied the motion.
The defendant was sentenced to concurrent seven-year prison No. 1-09-2840 terms on the two counts. In addition, the court imposed a monetary penalty of $1,660, which included a $200 DNA analysis fee (730 ILCS 5/5-4-3 (West 2008)), a $25 court services fee (55 ILCS 5/5-1103 (West 2008)), and a $5 court system charge (55 ILCS 5/5-1101(a) (West 2008)). ...