People v. Alsup ( 2011 )

Docket No. 108354.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
TERRY ALSUP, Appellee.
Opinion filed January 21, 2011.
JUSTICE THEIS delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
After a bench trial, defendant Terry Alsup was convicted of two
counts of possession of controlled substances with intent to deliver in
violation of the Illinois Controlled Substances Act (720 ILCS
570/401(c)(2), (d) (West 2004)) and sentenced to 11 years’
imprisonment. The appellate court found that the trial transcript
revealed a “complete breakdown” in the chain of custody on one
charge and reversed one of defendant’s two convictions.
No. 1–06–0513 (unpublished order under Supreme Court Rule 23).
We reverse the appellate court.
BACKGROUND
On March 22, 2005, Chicago police officers arrested defendant for
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narcotics transactions. The State charged defendant by information
with, inter alia, counts of possession with intent to deliver heroin and
cocaine.1 The case proceeded to trial.
Chicago Police Officer Marco Garcia testified that on March 22,
2005, he and Officer Lawrence Olivares were in a covert vehicle on
surveillance for possible narcotics transactions near Independence
Boulevard in Chicago. He testified that on the day in question, he
observed defendant in an alley behind 1319 South Independence.
Defendant stood alone in a black jacket and tan pants. According to
Garcia, an unknown male approached defendant and handed defendant
currency. Defendant then walked to a row of three black city garbage
cans. Defendant leaned down at the northernmost can, retrieved a
small item, and returned to the person to give him the item. The
person proceeded westbound toward Independence Boulevard. Two
subsequent transactions with unknown males occurred
similarly–United States Currency was tendered, defendant relocated
to the garbage can, retrieved a small item and then tendered the item
to the person. Officer Garcia observed no other individuals approach
the garbage can. After the third transaction, Officer Garcia radioed an
enforcement team.
The enforcement team was directed by Officer Garcia to the
location to arrest defendant and search behind the garbage can. A
member of the enforcement team, Officer Christopher Jania, testified
that he and another officer were in plain clothes in an unmarked car
when they received a radio call from Officer Garcia. Officer Jania
found defendant standing alone near the back of the building at 1317
South Independence, approximately 25 feet to the north of the
garbage cans. Following Officer Garcia’s directions, he knelt down
behind the wheel of the northernmost can. With the aid of a flashlight,
he found a ziplock bag containing 10 smaller ziplock bags of
suspected cocaine and five tinfoil packets of suspected heroin. Officer
Jania saw nothing else behind the garbage can. They then arrested
defendant without resistance. A custodial search of the defendant
1
Defendant was also charged with, and acquitted of, possession with
intent to deliver within 1,000 yards of a school. Those counts are not at
issue on appeal.
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revealed that a front pocket contained $15 United States currency.
The 10 ziplock bags had a total weight of 1.05 grams of cocaine and
the 5 tin foil packets contained a total weight of less than 0.1 gram of
heroin.
Officer Jania testified that after he arrested defendant, he held the
suspected narcotics on his person and transported them back to the
police station, maintaining them under his care, custody, and control.
He then turned them over to Officer Olivares, who was assigned the
inventories. Officer Olivares obtained from the dispatcher a unique
inventory number, also called an “R.D.” number, or “records division”
number. The number received from the dispatcher was 10502687 and
Officer Jania entered it into the computer. Officer Jania testified that
the recovered narcotics were placed in a “narcotics bag,” a clear,
plastic bag with green boxes on it, which was approximately 12-by-6
inches. Written in the green boxes was the relevant information
regarding the case, including the time of arrest, inventory number and
“other information related to the case.” According to Jania, the
appropriate boxes were filled out and the bag was handed to a
sergeant on duty, who determined that the inventory process had been
correctly followed. The sergeant then dropped the signed and sealed
bag containing the recovered narcotics into the narcotics vault.
Following the testimony of Officer Jania, the parties proceeded by
stipulation. The parties orally entered the stipulated expert testimony
of forensic scientist Daniel Bryant into evidence:
“[Assistant State’s Attorney]: Would also be a stipulation
with respect to the lab in this case. Daniel Bryant, B-r-y-a-n-t,
would testify that he is a forensic scientist–
Court: Slow down slow down.
[Assistant State’s Attorney]: I’m sorry. Employed by the
Illinois State Police Crime Lab, qualified to testify as an expert
in the field of forensic chemistry.
Would testify that he received the items under inventory
number 10502687 from the Chicago Police Department in a
heat sealed condition.
He would testify that he removed the items, found them to
contain under 1A1 and 1A2, nine items and under 1B ten
other items.
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He subjected all those items to tests commonly accepted
in the field of forensic chemistry for ascertaining the presence
of a controlled substance.
After performing the tests using equipment which was
properly calibrated and functioning he found the items under
1A1 to be positive for less than .1 grams of heroin and the
items under 1B1 to be positive for 1.05 grams of cocaine.
He reached these–This expert opinion within a reasonable
degree of scientific certainty that there was a proper chain of
custody maintained at all times with respect to the narcotics
and that he would be able to identify them in open court. So
stipulated?
[Defense Counsel]: So stipulated.”
The State then rested. Defendant moved for a directed verdict.
According to defense counsel, the evidence in this case–the “generic
description” of the transactions, lack of information from the observed
specific buyers, and the small amount of cash–together did not amount
to evidence of an intent to deliver drugs. Defense counsel asserted to
the trial court, “we have an amount of cocaine and amount of heroin
found. What, if anything, was sold to these people is anyone’s guess
I think based on that amount of money.” He also argued “this was a
weak case of constructive possession” pointing to Officer Jania’s use
of a flashlight in the middle of the day and the lack of fingerprints on
the baggies. The trial judge denied defendant’s motion.
Bertha Barfield testified on defendant’s behalf. She testified that
she is the mother of defendant’s five children. On March 22, 2005, she
and defendant drove to the residence at 1317 South Independence
Boulevard where her daughter’s boyfriend resided. Because the
doorbell was not functioning, Barfield stood outside and called up to
her daughter. According to Barfield, plain-clothed police officers
appeared and grabbed her and threw her against the wall. Defendant
attempted to prevent this. As described by Barfield at the bench trial,
“Terry got out of the car, was coming up to him like a man, why are
you searching my woman.” Defendant was then arrested. Barfield
asserted defendant was not involved in drug transactions that
afternoon.
Defense counsel’s closing argument urged the court to find
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Barfield’s version of events to be credible and the officers’ version
incredible. The State asserted that the officers’ testimony along with
the stipulation proved defendant’s guilt.
The trial court made a credibility determination in favor of the
State. The court stated in its oral findings of fact that “it was the
defendant whom [an officer] observed in the alley and on three
occasions involved in the transactions with the three individuals who
approached him.” The judge also rejected defense counsel’s argument
relating to constructive possession. The court found defendant guilty
of two counts of possession of a controlled substance with intent to
deliver, one count for heroin and the other for cocaine. Defendant
filed a form motion for a new trial, which was denied. The court
sentenced defendant as a Class X offender to concurrent 11-year
terms of imprisonment for the two offenses.
The record on appeal revealed a discrepancy. Officer Jania
testified that he recovered five items of heroin. The assistant State’s
Attorney’s recitation of the stipulation regarding forensic chemist
Daniel Bryant was that Bryant tested nine items of heroin. Defendant
asked the appellate court to reverse his conviction for possession of
heroin with intent to deliver. He claimed the State failed to prove
beyond a reasonable doubt the items that tested positive for heroin
were the same five tinfoil packets of suspected heroin retrieved from
behind the black city garbage can. People v. Alsup, No. 1–06–0513
(2008) (unpublished order under Supreme Court Rule 23). Initially,
the appellate court rejected defendant’s argument and affirmed
defendant’s conviction on the heroin count. Id.
Defendant filed a petition for rehearing. He argued that the
discrepancy fell under the plain-error exception of this court’s decision
in People v. Woods, 214 Ill. 2d 455 (2005). The State responded by
filing in the trial court a “Motion Pursuant to Illinois Supreme Court
Rule 329 To Make the Record Conform to the Truth,” with various
documents attached, disputing that the word “nine” was properly
uttered in court during defendant’s trial. According to the State, the
assistant State’s Attorney misspoke or the court reporter
mistranscribed the word “nine.” The supplemental record before this
court contains a transcript of the Rule 329 hearing in the trial court.
At the end of this hearing, the trial court stated:
“You checked with the court reporter. She checked her notes,
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and she has the word 9 down. I also went back and I checked
my notes, which are not official, but I checked my notes of the
trial. I wrote 9 down also. So, I will admit I was in error
because had I checked my notes more closely at that time on
that one count, I would have entered a finding of not guilty. I
don’t think the State gets a chance to come back and get a
second bite at the apple.”
The trial judge therefore rejected the State’s motion.
On March 6, 2009, the appellate court granted defendant’s
petition for rehearing and withdrew its August 8, 2008, Rule 23 order.
In its new order, the appellate court held the evidence failed to
establish a link between the items seized at the time of defendant’s
arrest and the items tested by the chemist. No. 1–06–0513
(unpublished order under Supreme Court Rule 23). The appellate
court stated the discrepancy leads to the conclusion that the State
failed to introduce sufficient evidence with respect to the element of
possession and constituted reversible plain error on the heroin count.
Defendant’s conviction for cocaine remained undisturbed.
We granted the State’s petition for leave to appeal. Ill. S. Ct. R.
315 (eff. Feb. 26, 2010).
ANALYSIS
In cases involving controlled substances, the rules of evidence
require that before the State can introduce results of chemical testing
of a purported controlled substance, it must provide a foundation for
its admission by showing the police took reasonable protective
measures to ensure that the substance recovered from the defendant
was the same substance tested by the forensic chemist. People v.
Woods, 214 Ill. 2d 455, 466 (2005). The trial court must determine
whether the State has met its “burden to establish a custody chain that
is sufficiently complete to make it improbable that the evidence has
been subject to tampering or accidental substitution.” Id. at 467. Once
the State has established this prima facie case, the burden then shifts
to the defendant to show actual evidence of tampering, alteration or
substitution. Id. at 468.
In the absence of such evidence from defendant, a sufficiently
complete chain of custody does not require that every person in the
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chain testify, nor must the State exclude every possibility of tampering
or contamination. Id. at 467. It is not erroneous to admit evidence
even where the chain of custody has a missing link if there was
testimony which sufficiently described the condition of the evidence
when delivered which matched the description of the evidence when
examined. Id. at 467-68. At this point, deficiencies in the chain of
custody go to the weight, not admissibility, of the evidence. Id. at 467(quoting People v. Bynum, 257 Ill. App. 3d 502, 510 (1994)).
The chain of custody establishes a foundation for such evidence as
reliable and admissible; it does not function as proof of the existence
of an element of the crime of possession of a controlled substance. Id.
at 473. Accordingly, a challenge to the chain of custody does not
serve as a challenge to the sufficiency of the evidence to support a
conviction and is not exempt from forfeiture. Id. Rather, such a
challenge is considered an attack on the admissibility of the evidence
and is thus subject to the ordinary rules of forfeiture. Id.; see also
People v. Blair, 215 Ill. 2d 427 (2005) (discussing waiver and
forfeiture).
While the parties are in agreement that the chain of custody issue
was not properly preserved for review, the parties dispute whether the
issue may be properly considered by this court on appeal under the
plain-error doctrine. Under the plain-error doctrine, we will review
unpreserved error when either (1) the evidence is closely balanced,
regardless of the seriousness of the error; or (2) the error is serious,
regardless of the closeness of the evidence. People v. Herron, 215 Ill.
2d 167, 186-87 (2005); People v. Piatkowski, 225 Ill. 2d 551, 564-55
(2007). Basing its argument on this court’s decision in People v.
Woods, the defendant argues that the unpreserved error is serious,
requiring plain-error review, because the five-versus-nine discrepancy
indicates a “complete breakdown” in the chain of custody. This
“complete breakdown,” according to defendant, constitutes a failure
to prove the identity of the substance which is an element of the
offense. Defendant interprets the Woods decision to allow review
under plain error despite defendant’s affirmative waiver of the chain
of custody issue at trial because a challenge to the sufficiency of the
evidence cannot be waived. We disagree that Woods requires such a
result in this case.
In Woods, police arrested the defendant after having been seen
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selling apparent contraband to passing motorists. While under
surveillance, Woods took paper currency from stopped motorists and
removed an object from the area of the front tire of a blue van,
handing the object to the motorist. Woods, 214 Ill. 2d at 459-60. One
of the arresting officers, Officer Dineen, testified the items recovered
from under the van consisted of “three zip-lock packets each
containing a tin foil packet containing what [he] believed to be
heroin.” These items were inventoried under inventory number
“2550419” and “ ‘standard Chicago Police Department procedures’ ”
were followed. Id. at 472. The State offered no further evidence other
than a stipulation that if forensic chemist Lisa Gilbert were to testify,
she would state she received inventory No. 2550419 in a sealed
condition and found three packets. She performed tests for
ascertaining the presence of a controlled substance on one packet and
found it to contain 0.1 gram of heroin. She estimated the weight of the
remaining two packets to be 0.2 grams. Defense counsel stipulated to
this testimony. Id. at 461. The trial court found defendant guilty. In
reversing, the appellate panel highlighted some of the deficiencies in
the chain of custody testimony.
On appeal to this court, we acknowledged that under limited
circumstances defendant may raise a challenge to the chain of custody
for the first time on appeal if the alleged error rises to the level of plain
error. Id. at 471. We contemplated:
“[T]hose rare instances where a complete breakdown in the
chain of custody occurs–e.g., the inventory number or
description of the recovered and tested items do not
match–raising the probability that the evidence sought to be
introduced at trial was not the same substance recovered from
defendant, a challenge to the chain of custody may be brought
under the plain error doctrine. When there is a complete
failure of proof, there is no link between the substance tested
by the chemist and the substance recovered at the time of the
defendant’s arrest. In turn, no link is established between the
defendant and the substance. In such a case, a failure to
present a sufficient chain of custody would lead to the
conclusion that the State could not prove an element of the
offense: the element of possession. However, in the instant
matter we are not faced with a situation that requires
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preservation of defendant’s right to challenge the State’s chain
of custody for the first time on appeal.” (Emphases added.) Id.
at 471-72.
With this in mind, we held that the State laid an adequate foundation
for the heroin evidence. Id. at 472-73. We found that the testimony of
the officer and the contents of the stipulation raised the probability
that the substance tested by the chemist and the substance recovered
at the scene were the same. Accordingly, the State met its burden
because the evidence recovered by the officer and that tested by the
forensic scientist were linked. Id.; cf. People v. Maurice, 31 Ill. 2d
456 (1964) (State presented “no link” between the heroin in evidence
and the defendant).
We also rejected the Woods defendant’s attempt to sidestep the
consequences of his stipulation to the chemist’s testimony through his
argument that a challenge to the chain of custody is a question of the
sufficiency of the evidence. Woods, 214 Ill. 2d at 472. We noted that
the Woods defendant did not forfeit his challenge to the chain of
custody at trial, but rather affirmatively waived his challenge by
agreeing to stipulate to the chemist’s testimony. This court pointed
out that it was the clear intent of the parties to remove from the case
any dispute regarding the chain of custody. Id. at 474. Accordingly,
we held that the appellate court erred in failing to apply the waiver
rule to bar defendant from raising, for the first time on appeal, a
challenge to the sufficiency of the State’s chain of custody. Id. at 475.
Turning to the instant case, we find the testimony and the
stipulation at trial established the probability that the items recovered
by Jania and the items tested by Bryant were the same. The record
reveals Officer Jania testified he retrieved five tinfoil packets of
suspected heroin along with baggies of cocaine from the northernmost
garbage can, which, as Officer Garcia testified, defendant used as a
storing place. It is undisputed that Jania used reasonable protective
measures to ensure safekeeping of the evidence from the time he
seized it. According to his unchallenged testimony, Officer Jania kept
the evidence from the scene on his person. He transported it back to
the police station, maintaining it under his care, custody, and control.
Identifying information was written on the heat-sealed evidence bag.
It is undisputed that all information on the bag was correctly written
and was placed in the evidence vault by the sergeant. Officer Jania
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also testified, without contradiction, that protocol had been
appropriately followed.
Further, the parties agreed that Daniel Bryant would have testified
the evidence bag was labeled with the same inventory number as
stated by Officer Jania, 10502687. He also would have testified the
bag was received in a heat-sealed condition. Defendant stipulated that
Bryant would have testified to the maintenance of a proper chain of
custody “at all times.” Defendant stipulated Bryant would have been
able to identify the heroin in open court which he had received in a
heat-sealed condition with the markings as testified to by Jania. This
applied not only to the heroin, but also to the cocaine recovered from
the garbage can in the alley near Independence Boulevard. There
remains no dispute that the chain of custody with regards to the
cocaine, which was in the same heat-sealed bag as the heroin, was
sufficient. All of this evidence indicates that it was improbable that the
evidence had been subject to tampering, alteration, or substitution,
and therefore the State satisfied its prima facie case.
As the State established this prima facie case, the burden shifted
to the defendant to show actual tampering, alteration or substitution.
Id. at 468. Defendant did not do so. Once the prosecution established
the probability that the evidence was not compromised, and because
the defendant did not show actual evidence of tampering or
substitution, the deficiencies in the chain of custody went to the
weight, not to the admissibility, of the evidence. Id. at 467.
Moreover, the record as a whole reveals that the primary issues at
trial concerned the credibility of the witnesses and defendant’s
challenge that the items he passed to the persons in the alley were
actually controlled substances. The chain of custody issue was entirely
removed from consideration by the stipulation. Id. at 469 (noting that
stipulations dispense with the need for evidence). Because the parties
intended to remove this issue from dispute, this action deprived the
State of the opportunity to correct or explain the five-versus-nine
discrepancy that was entered into the record. Id. at 469, 475.
We find defendant’s argument that the five-versus-nine
discrepancy constitutes a “complete breakdown” in the chain of
custody relies on an overbroad interpretation of our decision in
Woods. Our statement in Woods regarding when a complete
breakdown could conceivably occur–“e.g., the inventory number or
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description of the recovered and tested items do not match”–cannot
be understood without the context of the case. The only common
features in the testimony describing the condition of the evidence
seized by Officer Dineen and the description of the evidence tested by
Lisa Gilbert were the number of items and the inventory number
assigned to those items. Further, the record was devoid of information
regarding the procedures used by the police officers for safekeeping
the alleged contraband and how the items were delivered to the crime
lab. The record contained no evidence either by testimony or
stipulation that Officer Dineen would have identified the items tested
by the forensic chemist and would have testified that these items were
in the same or substantially the same condition as when he recovered
them from under the van. It was in the context of this dearth of links
in the chain of custody that a mismatch of inventory numbers or tested
items could be hypothetically reviewable under plain error.
Defendant’s reading that our “e.g.,” or exempli gratia, statement
quoted above is instead a per se exception overstates our holding.
In sum, we find that defendant has not established that “rare” case
where a “complete breakdown” in the chain of custody occurred
permitting him to raise a challenge to the discrepancy for the first time
on appeal. Id. at 471-72. We conclude that Officer Jania’s description
of the chain of custody, combined with the stipulated testimony of
Daniel Bryant, negate defendant’s argument. The State’s evidence,
from the collection of the tinfoil packets in the alley to the stipulated
testimony by forensic scientist Bryant, revealed the State satisfied its
prima facie case. Id. at 468, 472-73. Thus, we hold the appellate
court erred in failing to apply the waiver rule to bar defendant from
raising, for the first time on appeal, a challenge to the discrepancy
contained in the oral recitation of the stipulation. Id. at 475.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
appellate court and affirm the judgment of the circuit court.
Appellate court judgment reversed;
circuit court judgment affirmed.
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