In a recent Illinois appellate case, the defendant appealed his conviction for delivery of a controlled substance. On appeal, he argued that the prosecution hadn’t established a proper chain of custody for the drug, even though the parties had stipulated certain things about it, and that the fines, fee order, and mittimus had to be corrected accordingly.
The case arose when the defendant and his codefendant were indicted for delivering more than a gram of heroin under 720 ILCS 570/401(c). The defendant waived a jury trial. At the bench trial, two officers were called as witnesses. The first officer testified he was assigned to the narcotics division of the bureau of organized crime. He was the surveillance officer on the date of the transaction in question, and he sometimes used binoculars to observe what was happening. The second officer was undercover, buying the heroin.
The first officer testified he saw the undercover officer talking to the codefendant and saw the codefendant get into the passenger seat of the undercover vehicle. He followed the undercover vehicle to a residential neighborhood, where it was parked on a corner, and the codefendant got out of the car. The codefendant met the defendant, who was standing on the sidewalk.
The first officer testified that through his binoculars, he could see the codefendant give the defendant U.S. money, but he wasn’t sure how much. The defendant handed his codefendant items that were smaller than a quarter. The codefendant went back to the undercover vehicle and talked to the undercover officer, and then he reached through the side window. The defendant started walking southbound after his codefendant approached the undercover car.
When cross-examined, the officer testified that there was a stop between the undercover officer picking up the codefendant and going to the site of the drug delivery. The stop was at the codefendant’s mother’s house. He also testified that he was 30-40 feet from the delivery and used binoculars to view the seconds-long transaction. Afterward, the codefendant spoke to the undercover officer for a few seconds before getting into the car.
The first officer didn’t see them drive off because the defendant started walking away, and the first officer followed him instead. He also testified that he was about half a block away when other officers stopped the defendant.
The undercover officer testified he’d been a Chicago police officer for 20 years, and his role was to buy narcotics undercover with prerecorded funds on the date of the transaction. He identified the codefendant as someone he’d picked up, taken to his mother’s house, and then driven to the transaction. When they got to the neighborhood where the transaction took place, he gave the codefendant $150 in prerecorded funds, and the codefendant got out of the car to meet the defendant with the money in his hand. From 50 feet away, he saw the codefendant give the defendant the money and receive multiple small plastic bags.
Afterward, the codefendant came back to the car and through the window handed the undercover officer two small plastic bags filled with a brown substance that was suspected to be raw heroin. He kept them until he went back to the station. The codefendant got back into the car and said they were short $10. The officer gave him $10, and the codefendant gave it to the defendant.
When the undercover officer got back to the police station, he saw two photo arrays and identified the defendant and the codefendant. He inventoried the two plastic bags as a single inventory item, which was locked up until it was sent to the lab. On cross-examination, he admitted that he hadn’t mentioned that the defendant approached the undercover car, asking for more money.
The prosecution offered a stipulation that if a forensic scientist were to testify, he’d testify that he received the inventory of two packages in his employment at the crime lab. He would also testify that it tested positive for heroin, that it constituted 1.1 grams of powder, that the chain of custody was maintained at all times, and that after testing, he sealed the items back up. The public defender who represented the defendant stipulated to this.
Among other things, the defendant’s attorney argued in closing that there was a huge difference between raw heroin in its rock form and powder heroin, and even though the inventory numbers matched, there was a big difference between the rocks and the powder, and two bags of powder heroin wouldn’t cost $150. He argued that something was lost in the middle, related to the chain of custody.
The State responded that the parties had already agreed there was a chain of custody maintained, and what was submitted into evidence had the proper inventory number. If the defense was going to argue it wasn’t the proper package, the State would have called the forensic scientist.
The judge found the defendant guilty. The defendant asked the court to reconsider. The judge denied the motion, noting that he found the officers credible. The defendant was sentenced to the minimum of six years.
On appeal, the defendant argued that the State had failed to establish the chain of custody for the heroin. The appellate court explained that the chain of custody argument attacked the foundation of the evidence, and if a defendant fails to object to a deficiency in the foundation, he forfeits this argument. In this case, the undercover officer testified only that he received suspect heroin, but he didn’t testify it was in fact heroin. However, the appellate court noted that the defendant had stipulated the chemist would testify to the chain of custody being maintained. The defendant hadn’t borne the burden of showing any substitution, alteration, or tampering. The conviction was affirmed, but certain errors were corrected.
You should consult an experienced drug crime attorney if you are charged with participating in a transaction involving controlled substances. Each case is different, and an experienced attorney can make sure you present a strong defense. John D. Ioakimidis is an award-winning Chicago drug crime attorney and author with more than 24 years of experience. If you are charged with a drug crime in Illinois, contact me in Cook (312-229-5500), DuPage and Kane (630-504-2096), or Lake (847-696-6458) County for a free and confidential consultation to discuss your legal options.
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The Kane County Domestic Diversion Program, December 1, 2016