Appeal from Circuit Court of Macon County No. 06CF448 Honorable Katherine M. McCarthy, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
Carla Bender Appellate 4th District Court, IL
JUSTICE APPLETON delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Pope concurred in the judgment and opinion.
¶ 1 Defendant, Cassian T. Coleman, who is serving a sentence of 25 years' imprisonment for unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(D) (West 2006)), appeals from the summary dismissal of his petition for post-conviction relief. See 725 ILCS 5/122-2.1(a)(2) (West 2010). In our de novo review (People v. Brown, 236 Ill. 2d 175, 184 (2010)), we do not find the petition to be based entirely on "indisputably meritless legal theor[ies] or *** fanciful factual allegation[s]" (People v. Hodges, 234 Ill. 2d 1, 16 (2009)). Therefore, we reverse the trial court's judgment and remand this case for further proceedings.
¶ 3 A. The Trial and the Sentence
¶ 4 In the jury trial in September 2007, the State adduced the following evidence. Zundra Cotton lived in Decatur with Genaro Hendrix, a cocaine dealer. On March 22, 2006, the police raided their house. Defendant was standing on the steps of the front porch, and they arrested him. They searched his person and found that he had a key to the front door of the house.
¶ 5 Cotton's purse was on the kitchen table, and inside her purse were 15 bags of white powder. Also, two black plastic bags were crumpled up on the table, beside the purse, and inside these bags was a clear plastic wrapper. Such materials commonly were used to package kilograms of cocaine.
¶ 6 Defendant's fingerprints were on the two black plastic bags beside the purse. Cotton testified that defendant was Hendrix's supplier and that, earlier in the morning on the day of the raid, defendant brought over a package of cocaine and that she helped him break it up and put it in the 15 bags that the police subsequently found in her purse.
¶ 7 The parties entered into the following stipulation:
" (1) That Dan Ashenfelter is a Police Officer for the City of Decatur and is assigned as Evidence Officer for the department.
That on March 30th, 2006, he retrieved People's Exhibit [No.] *** 2 *** from the evidence locker at the Decatur Police Department. That members of the public are not allowed access to the evidence locker. *** People's Exhibit [No.] *** 2 *** [was] then in a sealed condition.
That on that date[,] Dan Ashenfelter transported and delivered People's Exhibit [No.] *** 2 *** to the Illinois State Police Crime Lab in Springfield, Illinois. *** Ashenfelter made no changes or alterations to the exhibit and did not tamper with the contents of the exhibit in any way.
*** People's Exhibit [No.] *** 2 *** [is] now in the same or substantially the same condition as [it was] on March 30th, 2006.
(4) That Michael Cravens was employed as a Forensic Scientist with the Illinois State Police Crime Lab in Springfield ***. [He] is qualified as an expert witness in the identification of controlled substances.
That on March 30th, 2006, he received People's Exhibit [No.] 2 *** from Dan Ashenfelter at the Crime Lab. *** People's Exhibit [No.] 2 *** [was] then in a sealed condition[,] and the exhibit [is] now in the same or substantially the same condition as when he received [it].
That he subsequently performed tests on People's Exhibit [No.] 2 ***. *** [B]ased upon the tests he performed [and] his expertise[,] Michael Cravens was able to determine[,] to a reasonable degree of scientific certainty[,] that the white powder in People's Exhibit [No.] 2 was 926.0 grams of cocaine." (Emphasis added.)
¶ 8 Immediately after reading that stipulation to the jury, the State called David Dailey, a detective with the Decatur police. Dailey testified that on March 22, 2006, he helped execute the search warrant at the house where Cotton and Hendrix lived. At the scene, he weighed the 15 bags from the purse. Nine of the bags weighed 63 grams apiece, and the other six bags weighed 64 grams apiece. He field-tested only 1 of the 15 bags: it tested positively for cocaine. Then he emptied the 15 bags into a larger evidence bag, People's exhibit No. 2; sealed it; and took it to the evidence vault.
¶ 9 After Dailey's testimony, the State rested, and outside the presence of the jury, the prosecutor, Jay Scott, offered exhibits in evidence. Defense counsel, Scott Rueter, objected to the proposed admission of People's exhibit No. 2, and at the same time, he moved for a directed verdict. Rueter argued that because Dailey commingled the contents of the 15 bags at the scene and because the crime laboratory consequently could not have tested the contents of each bag separately for the presence of cocaine, the State had failed to "establish a prima facie case with respect to the 962 grams of cocaine." Rueter argued: "We haven't had any testimony that, and I know the lab can do this, we haven't had any testimony that's [sic] it's 95 percent pure cocaine, or if it's, you know, 12 percent pure cocaine. There's nothing to show that what the officer did didn't compromise the amount of weight involved here."
¶ 10 Scott offered a twofold response. First, he suggested that Rueter's argument was implausible, considering the "empty kilo wrapper" that police officers found on the kitchen table and Cotton's testimony that she had helped defendant break up the "kilo" (1,000 grams) into the 15 bags, which, in fact, cumulatively weighed almost a kilogram (926 grams). Scott argued: "I think it's kind of throwing common sense out the window to think that their [sic] weighing, bagging up some other substance." Second, Scott reminded the trial court of the stipulation. He said: "We have a stipulation that this is 926 grams of cocaine and now to turnaround [sic] at the end and say it's not 926 grams of cocaine I don't think that's really being fair in this case by the defense."
¶ 11 Rueter replied: "You know at trials we try and prepare for and do our best and sometimes the evidence comes in different than we expect. *** I think based upon the evidence as it now stands we have compromised evidence."
¶ 12 After hearing these arguments and counterarguments, the trial court overruled defense counsel's objection to People's exhibit No. 2 and admitted the exhibit in evidence.
¶ 13 The jury returned, and the defense presented its case, followed by rebuttal evidence from the State. Then it was time to make closing arguments to the jury.
¶ 14 Before closing arguments, outside the jury's presence, Scott made an oral motion to bar the defense from suggesting to the jury that People's exhibit No. 2 was "not necessar[ily]" 926 grams of cocaine. Scott explained to the trial court that, before trial, he and Rueter agreed to stipulate that People's exhibit No. 2 was 926 grams of cocaine and that the State had relied on that stipulation in the presentation of its case. Scott "underst[oo]d how things come up," but he believed it would be unfair to the State to allow the defense now to contradict the stipulation. At this late stage of the trial, he would be "kind of hamstrung" because, in the trial, he relied on the stipulation and did not "have the witness come into [sic] testify."
¶ 15 Rueter insisted, "I'm still sticking with the stipulation"-but he nevertheless wanted to argue to the jury that there was reasonable doubt as to the weight of the cocaine. He told the trial court: "But I think in all fairness too, given how the evidence has come in to establish as we have that the officer was the one who mixed the individual bags and we don't know-I mean, it's the same as if the officer had taken a bag of talcum powder and a bag of cocaine that weighs 10 grams and mixed it together." It was impossible to tell if the one bag had been cocaine (or a substance containing cocaine) and the other 14 bags had been merely a cutting agent.
¶ 16 The trial court decided: "Based on [the] stipulation, I will not allow this defendant to argue that People's Exhibit [No.] 2 is anything less than 926 grams of cocaine."
¶ 17 Rueter replied: "I'm not gonna argue that Exhibit Number 2 is less than 926 grams of cocaine. But I do intend to argue about the possibility that the officers are the one[s] that made it that weight by combining those items." One of the bags, Rueter admitted, "probably [was] cocaine because of the field test," but the weight of that individual bag was 64 grams at the most. Dailey did not field test the other 14 bags before dumping the contents of all the bags into a single container, and those 14 bags "could have been inositol or baking powder." Dailey "raised that amount to over 900 grams by commingling those amounts without keeping them separate for identification and without performing a field test."
¶ 18 In response, Scott pointed out, first of all, that "a field test [was] not evidence proving what a substance [was]"; a field test was merely "preliminary." Anyway, more to the point, if, instead of entering into the stipulation, the defense had taken the position, from the beginning, that the separate contents of each of the bags were unproved by chemical analysis, the State then could have called a witness to testify whether "there was a very small amount of cocaine." Instead of calling such a witness, the State had relied on the stipulation. Scott said: "I mean that would have been something we could have gone through with a chemist to show that this wasn't, you know, it wasn't 1/15th cocaine and the rest of it was talcum powder."
¶ 19 The trial court again agreed with the State and forbade the defense to argue to the jury that People's exhibit No. 2 might not be 926 grams of cocaine.
¶ 20 Counsel made their closing arguments. The jury found defendant guilty. The trial court sentenced him to 25 years' imprisonment. He took a direct appeal.
¶ 21 B. The Direct Appeal
¶ 22 In his direct appeal, defendant argued the trial court had erred by admitting People's exhibit No. 2 into evidence, because, according to the evidence, Dailey had tampered with, or altered, this exhibit by dumping the contents of all 15 bags into a single container and consequently the crime laboratory had been unable to separately test the contents of each bag. People v. Coleman, 391 Ill. App. 3d 963, 970 (2009). Defendant ...