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The People of the State of Illinois v. Bobby Fountain

February 25, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
BOBBY FOUNTAIN,
DEFENDANT-APPELLANT.



Appeal from theCircuit Court of Cook County. No. 07 CR 15592 The Honorable John T. Doody, Jr., Judge Presiding.

PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion.

Justices McBride and R.E. Gordon concurred in the judgment and opinion.

OPINION

Following a guilty verdict by a jury, the defendant Bobby Fountain contends the State failed to prove the weight element of the charged offense beyond a reasonable doubt because the forensic chemist did not expressly testify to having individually tested each of the foil packets containing the suspected heroin to meet the one-gram threshold. The defendant also argues that the circuit court judge failed to comply with Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)) and improperly assessed the DNA fee.

We affirm. The jury could have reasonably inferred from the evidence that each foil packet was chemically tested to find the defendant guilty beyond a reasonable doubt of possession with intent to deliver 1.3 grams of heroin; the trial judge did not commit reversible error under Rule 431(b) when he asked prospective jurors if they had "a problem with" or "disagree[d] with" the rule's four principles of law; and we maintain our previous rejection of the identical challenge to the DNA fee.

BACKGROUND

On June 26, 2007, the defendant was arrested and charged with possession of at least 1 but less than 15 grams of a substance containing heroin with intent to deliver (720 ILCS 570/401(c) (West 2008)), and a cocaine-related offense, the conviction of which he does not challenge. At the defendant's jury trial, the following material evidence to this appeal was introduced.

Officer Keith Karczewski of the Chicago police department testified that on June 26, 2007, he was conducting a narcotics mission with his partners John Dolan and Thomas Harris. At 12:30 p.m., he was driving a covert van in the area of 4231 west Madison in Chicago when he saw the defendant on the sidewalk yelling "rocks, blows, rocks, blows." Based on his experience, Officer Karczewski understood "rocks" to mean crack cocaine and "blows" to mean heroin. Officer Karczewski parked the van on the opposite side of the street across four lanes of traffic, and observed the defendant for approximately 15 minutes. During his surveillance, Officer Karczewski observed a similar event on three separate occasions: a man would approach the defendant, engage in a brief conversation, and exchange United States currency for a small item the defendant retrieved from a plastic bag in his front right pocket. Because he believed the defendant had engaged in narcotics transactions, Officer Karczewski instructed Officers Dolan and Harris to approach the defendant.

Officer John Dolan testified that when he and Officer Harris approached, the defendant volunteered that he "had a jab of blows and a couple of rocks" in his right front pocket, which he was selling "for a cat named Furley." Officer Dolan reached into the defendant's right front pocket and retrieved a large plastic bag. Inside the large bag was a smaller bag holding nine foil packets Officer Dolan believed to be heroin, as well as two smaller bags Dolan believed to be crack cocaine. Officer Dolan also recovered $180 from the defendant's right front pocket. Officer Dolan testified that he maintained constant care and control over the items until he transferred custody of the items to Officer Karczewski at the police station.

Officer Karczewski inventoried the cocaine, heroin, and currency under separate, unique inventory numbers. He placed each inventoried item into a larger evidence bag, heat-sealed the bag, and placed it into a safe until the bag was transported to the crime lab.

Linda Rayford, a forensic chemist with the Illinois State Police, duly qualified as an expert, testified she received the heat-sealed evidence bag on July 3, 2007. She opened the evidence bag and removed the smaller bag containing nine foil packets of suspected heroin. Chemist Rayford testified she weighed the nine packets separately and determined the powder weighed 1.3 grams. She then conducted a preliminary color test and a confirmatory test, both of which indicated the presence of heroin. Chemist Rayford opined the nine foil packets contained

1.3 grams of heroin.

The defendant testified that on June 26, 2007, he worked as a temporary employee at Pennant's Bakery until 5 a.m., then walked home and took a nap. When he awoke, the defendant walked to the Family Dollar store on the 4200 block of west Madison to shop. He then walked to a nearby barbershop to get his hair cut, but the shop was closed. As he waited for the shop to open, he spoke to a man outside the shop. The defendant testified he never exchanged items with anyone on the street, and never yelled "rocks" or "blows." He also denied telling Officer Dolan that he was selling drugs "for a cat named Furley."

The jury found the defendant guilty of possession with intent to deliver at least 1 but less than 15 grams of a substance containing heroin. The trial judge sentenced the defendant to four years' imprisonment. The defendant was also ordered to pay certain fines and fees, including a $200 DNA fee pursuant to section 5-4-3 of the Unified Code of Corrections (730 ILCS 5/5-4-3 (West 2008)). This appeal followed.

ANALYSIS

The defendant initially contends reasonable doubt remains that he actually possessed 1.3 grams of heroin because the forensic chemist was never questioned regarding the exact testing procedures she followed. In the absence of explicit testimony from the chemist that she actually tested each of the nine foil packets of powder recovered from the defendant's pocket, he contends his conviction must be reduced to possession of less than one gram of heroin with intent to deliver, a Class 2 felony. See 720 ILCS 570/401(d) (West 2008).

Sufficiency of Evidence

When confronted with a challenge to the sufficiency of the evidence, a reviewing court does not retry the defendant; rather, it determines whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Internal quotation marks omitted.) (Emphasis in original.) People v. Ross, 229 Ill. 2d 255, 272, 891 N.E.2d 865 (2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard reflects that it is the province of the jury to determine the credibility of witnesses, assign weight to their testimony, and resolve conflicts in the evidence. Ross, 229 Ill. 2d at 272. To overturn a conviction, the evidence must be so improbable or unsatisfactory that reasonable doubt of the defendant's guilt remains. Ross, 229 Ill. 2d at 272. Reasonable doubt exists as a matter of law when the State fails to prove an essential element of the offense. "When a defendant is charged with possession of a specific amount of an illegal drug with intent to deliver and there is a lesser included offense of possession of a smaller amount, then the weight of the seized drug is an essential element of the crime and must be proved beyond a reasonable doubt." People v. Jones, 174 Ill. 2d 427, 428-29, 675 N.E.2d 99 (1996).

When suspected illegal drugs are seized in the form of powder in separate packets, a sufficient number of the seized packets must be tested to establish that the defendant possessed the requisite amount of the illegal drug to prove the weight element beyond a reasonable doubt. Jones, 174 Ill. 2d at 429 ("a portion from each container or sample must be tested in order to determine the contents of each container or sample"); cf. People v. Clinton, 397 Ill. App. 3d 215, 223, 922 N.E.2d 1118 (2009) (chemist improperly "combined six packets of suspected heroin before determining whether each of the packets did, in fact, contain heroin" (emphasis added)). In other words, the trier of fact may not infer beyond a reasonable doubt that the powdered substance present in the weighed but untested packets is identical to the substance of the tested packets because powder is not homogenous. Jones, 174 Ill. 2d at 429 ("random testing is permissible when the seized samples are sufficiently homogenous so that one may infer beyond a reasonable doubt that the untested samples contain the same substance as those that are conclusively tested").

In Jones, the defendant was arrested while in possession of five plastic packets, each "containing a white rocky substance." Jones, 174 Ill. 2d at 428, 430. The State's evidence established that two of the five packets tested positive for cocaine; the remaining three packets, however, were not tested. Jones, 174 Ill. 2d at 428. According to the chemist, the total weight of all five packets was 1.4 grams, but the two packets actually tested weighed only 0.59 grams. Jones, 174 Ill. 2d at 428. The defendant was "convicted of possession with intent to deliver 1.4 grams of cocaine." Jones, 174 Ill. 2d at 428.

On appeal, our supreme court affirmed the appellate court's judgment to reduce the defendant's conviction in line with the weight of the substance actually tested. Jones, 174 Ill. 2d at 430. The supreme court held that no inference could be drawn concerning the composition of the three untested packets. Jones, 174 Ill. 2d at 430. The court reasoned that "the five packets containing loose substances cannot be equated with identically marked and stamped tablets, pills, or capsules." Jones, 174 Ill. 2d at 430. Absent a chemical analysis, it is "pure conjecture" that the contents of the three untested packets also contained cocaine, which is insufficient to prove beyond a reasonable doubt that defendant possessed at least one gram of the illegal drug. Jones, 174 Ill. 2d at 430.

The defendant contends that we should reach the same outcome as in Jones. He argues in his main brief: "it is impossible to know if each packet contained heroin, and thus whether it was appropriately included in the total weight." As in Jones, the defendant contends his conviction should be reduced to the lesser included offense.

There are, however, substantial differences between this case and Jones. Here, the chemist expressly testified that she weighed each of the nine packets separately. "I made sure that each was weighed separately." In contrast to Jones, we have no testimony from chemist Rayford that she tested less than all nine foil packets, though the parties acknowledge that chemist Rayford's testimony on direct examination, describing the ...


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