Appeal from the Circuit Court of McHenry County. No. 10-CF-1150 Honorable Joseph P. Condon, Judge, Presiding.
Justices McLaren and Birkett concurred in the judgment and opinion.
BURKE, PRESIDING JUSTICE
¶ 1 A jury found defendant, Patrick J. Anderson, guilty of unlawful delivery of less than one gram of heroin (see 720 ILCS 570/401(d) (West 2010)) and attempted unlawful possession of a firearm by a felon (see 720 ILCS 5/8-4, 24-1.1 (West 2010)). Defendant was arrested after delivering heroin to an undercover officer in exchange for a firearm and ammunition.
¶ 2 On appeal, defendant does not challenge the weapon conviction, but rather argues that he is entitled to a new trial on the charge of unlawful delivery of heroin. First, defendant contends that the State failed to establish a sufficient chain of custody for the heroin. Second, defendant contends that defense counsel rendered ineffective assistance by failing to object to evidence that defendant had an outstanding arrest warrant at the time of the offense and by allowing the jury to learn that defendant's prior felony conviction was of unlawful possession of a controlled substance. We affirm.
¶ 3 I. FACTS
¶ 4 At trial, Special Agent Andy Shiu testified that he is a Lake Forest police officer assigned to a multidepartmental drug task force known as the Metropolitan Enforcement Group (MEG). On October 28, 2010, Agent Shiu had three telephone conversations with a man after obtaining his phone number from a confidential informant. During the conversations, Agent Shiu told the man that he was interested in buying heroin and using one of his family's guns to pay for the drugs. The man said that he was in "legal trouble" and would exchange some heroin for a gun. Agent Shiu and the man arranged to meet that day, but the meeting did not occur.
¶ 5 Without objection by defense counsel, Agent Shiu testified that, on the date of defendant's arrest, he knew that defendant had an outstanding arrest warrant in McHenry County. On cross-examination, defense counsel elicited testimony that Agent Shiu knew that the arrest warrant was also active on the date of his first attempted meeting with the man.
¶ 6 Agent Shiu testified that, on November 3, 2010, he had more telephone conversations with the seller. They arranged to meet in Lake County that evening. Dressed in civilian clothing, Agent Shiu drove alone in an unmarked car to the location. While waiting, Agent Shiu again spoke to the man, who asked Agent Shiu to meet him at a different location, in McHenry County. Agent Shiu drove to the location, followed by a surveillance team of MEG agents.
¶ 7 At 8:45 p.m., Agent Shiu reached the location and was met by defendant. Defendant walked to Agent Shiu's car and entered on the front passenger side. Defendant reached into his coat pocket, pulled out a knotted baggie containing what Agent Shiu believed to be a small amount of heroin, and handed the baggie to Agent Shiu. Although it was "relatively dark" in the car, the dashboard provided enough light for Agent Shiu to see that the baggie was clear plastic. Agent Shiu held the baggie but did not open it to inspect its contents.
¶ 8 Agent Shiu testified that he began counting out some money, but, before handing defendant the money, Agent Shiu retrieved from the rear seat a zippered pouch. The pouch contained a semiautomatic pistol, a magazine for the pistol, and some loose bullets. The ammunition did not match the firearm. Agent Shiu opened the pouch and showed the gun to defendant. Defendant told Agent Shiu that, in exchange for the gun, Agent Shiu could keep the heroin that defendant had brought and that defendant would deliver twice as much the next day. Defendant held the gun but only for about 30 seconds.
¶ 9 Agent Shiu testified that he pressed the car's brake pedal to signal the MEG agents to move in and arrest defendant. Defendant started exiting the car just as the agents opened his door. Some of the agents took defendant into custody, while others pretended to arrest Agent Shiu to maintain the ruse. Some of the agents placed Agent Shiu face down on the pavement. Meanwhile, defendant was handcuffed, placed in an MEG car, and removed from the scene.
¶ 10 After defendant was removed, another MEG agent handed Agent Shiu a clear plastic knotted baggie. Agent Shiu could not recall the agent's name, and his report did not mention it either. Agent Shiu did not open the baggie. However, Agent Shiu testified that the baggie was the same one he received from defendant.
¶ 11 Agent Shiu testified that, when the agents pretended to arrest him, the baggie he received from defendant was sitting on the dashboard. Agent Shiu did not know who recovered the baggie from the dashboard, but he stated that only MEG agents were at the scene. Agent Shiu returned to the car and found the pouch containing the gun and other items. Agent Shiu gave the pouch and the baggie to Detective Kyle Mandernack, another MEG agent.
¶ 12 Detective Mandernack testified that, 10 to 15 minutes after defendant's arrest, he walked to Agent Shiu's car, where Agent Shiu handed Detective Mandernack the gun, the ammunition, the pouch, and the baggie. Detective Mandernack estimated that there were eight other MEG agents on the scene during that 10- to 15-minute period. Detective Mandernack described the baggie as clear plastic, knotted at the opening, with a white powder inside. Detective Mandernack and Sara Anderson, a forensic scientist with the Illinois State Police laboratory, offered additional testimony about the processing of the baggie's contents, which tested positive for heroin.
¶ 13 The envelope containing the plastic bag and the heroin was admitted into evidence over defense counsel's objection. Counsel argued that the exhibit was inadmissible because the testimony showed a "broken chain of [custody of the] evidence." Specifically, counsel asserted that the baggie that defendant gave to Agent Shiu had been out of the agent's sight for several minutes and accessible to other unidentified agents before an unidentified agent returned a baggie to Agent Shiu at the scene. The trial court found that "[t]here is evidence it's the same plastic bag. [Agent] Shiu testified the bags were the same."
¶ 14 The trial court also admitted and published to the jury a certified copy of defendant's 2005 felony conviction of unlawful possession of a controlled substance. Defense counsel did not object.
¶ 15 During closing argument, defense counsel reminded the jury that the police had an outstanding arrest warrant for defendant before Agent Shiu arranged the undercover transaction leading to the charges in the case. Counsel also told the jury that the police had evidence that defendant had a criminal record and was addicted to heroin. The State objected that the comment about addiction referred to facts not in evidence, and the trial court sustained the objection.
¶ 16 Over defense counsel's objection, the trial court instructed the jury that a person commits unlawful possession of a firearm by a felon when he knowingly possesses a firearm "having been convicted of unlawful possession of a controlled substance." Defense counsel argued unsuccessfully that, by referring to actual possession of a firearm rather than to attempted possession, the instruction improperly referred to an uncharged offense. Defense counsel did not object to the instruction on the ground that it disclosed the name and nature of defendant's prior conviction. The jury found defendant guilty of unlawful delivery of less than one gram of heroin (see 720 ILCS 570/401(d) (West 2010)) and attempted unlawful possession of a firearm by a felon (see 720 ILCS 5/8-4, 24-1.1 (West 2010)).
¶ 17 Defense counsel filed a posttrial motion arguing that the heroin was inadmissible because the State failed to establish a sufficient chain of custody and show that it was in the same condition when tested as when it was recovered at the scene.
¶ 18 Before the posttrial motion was heard, defense counsel was allowed to withdraw due to a conflict with defendant. The court appointed a new attorney who amended the posttrial motion, alleging that the chain of custody was deficient because Agent Shiu testified that the baggie he received from defendant was knotted but Anderson testified that the baggie she received had not been knotted. The trial court denied the motion and sentenced defendant to 360 days in jail for attempted unlawful possession of a firearm by a felon (see 720 ILCS 5/8-4, 24-1.1 (West 2010)) and 6 years' imprisonment for unlawful delivery of less than one gram of heroin (see 720 ILCS 570/401(d) (West 2010)).
¶ 19 II. ANALYSIS
¶ 20 A. Chain of Custody
¶ 21 On appeal, defendant argues that the trial court abused its discretion in admitting People's Exhibit 3, which was the evidence envelope containing the baggie of heroin, because the State failed to establish a sufficient chain of custody. There is no dispute that the State did not present evidence to identify every custodian in the chain leading from the seizure of the drugs by Agent Shiu to their receipt by Anderson.
¶ 22 To convict a defendant of unlawful delivery of a controlled substance, the State must prove that the material recovered from the defendant is in fact a controlled substance. Cf. People v. Woods, 214 Ill.2d 455, 466 (2005) (unlawful possession). In narcotics cases, in which the physical evidence is often not readily identifiable or may be susceptible to tampering, contamination, or exchange, the State must establish a chain of custody. Woods, 214 Ill.2d at 467. The State establishes a prima facie showing of a sufficient chain of custody for narcotics by establishing that reasonable protective measures were taken to ensure that the evidence was not tampered with, substituted, or altered between the time of seizure and the forensic testing. Woods, 214 Ill.2d at 468. Once the State makes its prima facie showing, the burden shifts to the defendant to produce evidence of actual tampering, alteration, or substitution. If the defendant presents such evidence, the burden shifts back to the State to rebut the defendant's claim. Woods, 214 Ill.2d at 468. The defendant is not required to show actual tampering, alteration, or substitution unless the State first establishes its prima facie showing that it is improbable that the evidence was compromised. Woods, 214 Ill.2d at 468. The State need not exclude every possibility of contamination but rather must show only that it took reasonable protective measures after the evidence was seized and that it is unlikely that the evidence was contaminated. People v. Lundy, 334 Ill.App.3d 819, 826 (2002). When reviewing the trial court's ruling on the sufficiency of a chain of custody, a court of review will reverse the trial court's ruling only upon finding abuse of discretion. People v. Howard, 387 Ill.App.3d 997, 1004 (2009).
¶ 23 We point out that tampering, alteration, or substitution of seized narcotics can affect the quality of the substance, the quantity of the substance, or both. Here, defendant challenges his conviction of unlawful delivery of less than one gram of heroin (see 720 ILCS 570/401(d) (West 2010)). Based on the charged weight of the substance, under the statute defendant was subject to the least severe penalty for delivery of the drug. Thus, even if the substance seized from defendant was somehow altered, he could not have been prejudiced by a change in weight. In other words, any alteration causing the substance to weigh more did not result in a sentencing enhancement based on weight. ...