Appeal from the Circuit Court of Massac County. No. 09-CF-150 Honorable Joseph Jackson, Judge, presiding.
The opinion of the court was delivered by: Justice Stewart
NOTICE Decision filed 09/04/12. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
JUSTICE STEWART delivered the judgment of the court, with opinion. Justices Welch and Goldenhersh concurred in the judgment and opinion.
¶ 1 After a stipulated bench trial, the defendant, Michael Shores, was convicted of possession of anhydrous ammonia in an unauthorized container in violation of section 25(c)(1) of the Methamphetamine Control and Community Protection Act (720 ILCS 646/25(c)(1) (West 2008)). After the defendant was arrested, but before he was charged with any crime, the state police destroyed the anhydrous ammonia and the unauthorized container along with other items recovered from his truck. The defendant filed a motion in limine to exclude evidence of the destroyed items because his attorney was not afforded an opportunity to inspect the items or have them independently tested. The circuit court denied his motion. On appeal, the defendant argues that he was denied his right to effective assistance of counsel as a result his attorney's failure to adequately cross-examine a member of the state police meth response team during the hearing on his motion in limine. In addition, the defendant argues that he was denied his right to due process and equal protection when the circuit court prevented him from having copies of the discovery materials that were in his attorney's custody. We affirm.
¶ 3 During the late-night hours of November 22, 2009, Officer Bill Bullock of the Massac County sheriff's department inspected a group of anhydrous ammonia tanks that were located just off Highway 45 in Massac County. Officer Bullock periodically conducted inspections of these tanks while on duty because the tanks were often tampered with. During his first inspection that evening, the tanks appeared normal, and nothing appeared unusual. A couple of hours later, however, at approximately 1:20 a.m. on November 23, 2009, Officer Bullock conducted another inspection of the tanks, and he noticed that a cover cap on one of the tanks was off and that there was anhydrous vapor coming from the tank. The cover cap had been in place during Bullock's previous inspection. Officer Bullock exited his vehicle to get a closer look and noticed an anhydrous smell and a muddy footprint on top of the tank's tire. The footprint was not there when the officer conducted his earlier inspection of the tanks.
¶ 4 While Officer Bullock walked around and inspected the tanks, he heard a vehicle pull up and stop on a gravel road just south of the tanks. He then heard the sounds made by someone crossing through weeds and moving toward the tanks. Bullock called Officer Penrod on his cellular telephone and advised him of his situation. Officer Penrod responded that he was en route. When Officer Penrod arrived at the scene, he saw a truck backing down a gravel road with its lights off and coming in his direction. When the truck got close, he activated his overhead lights and conducted a traffic stop. Officer Bullock responded to the location of the traffic stop, which was about one-half of a mile from the anhydrous tanks.
¶ 5 The truck Officer Penrod stopped was driven by the defendant and contained two passengers. Penrod approached the driver's side of the truck, and Bullock approached the passenger side. As he approached the truck, Bullock noticed a propane tank in the truck bed.
Propane tanks were commonly used by suspects Bullock had arrested in the past for stealing anhydrous ammonia. Bullock opened the passenger door and asked one of the passengers to step out of the truck. On the other side of the truck, Officer Penrod asked the defendant to step out of the truck.
¶ 6 When the passenger exited the vehicle, Officer Bullock noticed that there was a purple duffel bag on the floorboard that had been between the passenger's feet. Bullock advised both passengers that someone had just tampered with anhydrous ammonia tanks and that they were going to be detained pending further investigation. Bullock opened the purple duffel bag and observed a garden hose with a cap fastened to its end. He knew from past arrests that similar items were commonly used to steal anhydrous ammonia. The officers advised the defendant and the passengers that they were under arrest for theft of anhydrous ammonia. The State subsequently charged the defendant with unlawful possession of anhydrous ammonia, unlawful possession of methamphetamine-manufacturing materials, unlawful possession of anhydrous ammonia in an unauthorized container, and unlawful methamphetamine conspiracy.
¶ 7 Prior to his trial, the defendant filed a motion in limine seeking to bar the State from presenting any evidence concerning certain items that the officers took from his truck, including (1) a black propane cylinder with an altered valve, (2) the purple duffel bag that contained two ski masks, tools, inner tube, a piece of garden hose with a plastic pipe attached, a piece of garden hose with a plastic fitting attached, and tape, (3) a 20-ounce Mountain Dew bottle containing a clear liquid, (4) an orange juice bottle containing a clear liquid that vapored when opened, (5) an empty, clear, plastic bottle, and (6) an empty white propane tank with a loose valve. The defendant's motion in limine alleged that the listed items were destroyed the day after he was arrested and before he was charged with any crimes, thereby preventing defense counsel from examining the items or submitting them to testing.
¶ 8 On March 4, 2010, the circuit court conducted a hearing on the defendant's motion in limine. At the hearing, the State called Officer Ted Holder as a witness to testify about the destruction of the evidence found in the defendant's truck. Officer Holder testified that when he came to work in the morning on November 23, 2009, Officer Bullock advised him that they had arrested three people the previous night for possession of anhydrous ammonia. Officer Holder then called the state police meth team and asked them to send someone down to test the items that were recovered from the defendant's truck. He explained that the Massac County sheriff's department could not keep or transport any hazardous material, including anhydrous ammonia and ether, and that they did not have any equipment on-site to test the confiscated items. Therefore, anytime they have an incident involving anhydrous ammonia or methamphetamine, they call the state police meth team in case there is cleanup involved.
¶ 9 Officer David Bartoni, a sergeant with the Illinois State Police, testified that he was a member of the meth response team and had received training in handling chemicals that are involved in the manufacture of methamphetamine, including the storage and transport of hazardous materials. He explained that the state police's policy with respect to meth-related items is to transport the hazardous materials to the state police headquarters in Du Quoin where they are stored in a special container until a hazardous materials contractor removes the materials for permanent disposal.
¶ 10 According to Officer Bartoni, the policy exists because certain items, including anhydrous ammonia, cannot be safely stored in an evidence vault. With respect to anhydrous ammonia, he testified that it is an inhalation hazard, is caustic, and boils at 27 degrees below zero. If it is stored in a non-approved container, it can cause the container to fail and explode. He explained that it is also against state police policy to store ether in any container in an evidence vault. It has to be destroyed in the same manner.
¶ 11 Officer Bartoni testified that on November 23, 2009, he received a telephone call from Officer Holder requesting assistance with the items that were seized from the defendant's truck. Bartoni took custody of the black propane tank recovered from the defendant's truck. He testified that the valve on the tank had turned to a bluish color. Bartoni explained that the bluish color was caused by a reaction to anhydrous ammonia. Bartoni tested the tank with a "Drager test." The Drager test involves testing tubes that change color according to the parts per million of anhydrous ammonia that it detects. He held the testing tube near the valve opening, and the test "maxed out" with the first pump. He testified that the test showed well over "100 parts per million."
¶ 12 Officer Bartoni testified that it would have been hazardous to store the black tank because it was designed to hold propane, and the tank's valve was not designed to withstand either the pressure or the caustic values of anhydrous ammonia. He testified that as the tank got warmer, more pressure would build up, and eventually the tank would fail. If the tank failed, there would have been an explosion, an inhalation hazard from the anhydrous ammonia, and possible burns if the anhydrous ammonia touched a person's skin. He testified that it was "absolutely not" something that could be stored by the state police or by a local sheriff's department.
¶ 13 With respect to the 20-ounce Mountain Dew bottle containing a clear liquid, Bartoni testified that he tested it with "pH paper and the Drager pump." He testified that "it did have a positive indication for ether" and "had a level 5 pH, which is basically neutral, which ether would test neutral as far as the acidic level." He testified that the Mountain Dew bottle and its contents had to be destroyed because it was against state police policy to store ether in any container, "even in its original starter fluid container." He testified that it was extremely flammable and its vapors were extremely explosive.
¶ 14 He testified that the orange juice bottle containing a clear liquid had a "level 2 pH," which meant that it had an acid base. He testified that it had to be destroyed because it was against state police policy to store any acids. He explained that if the seal on the container was not tight, vapors from the acid could vent out and ...