People v. Adair ( 2010 )

SIXTH DIVISION
December 10, 2010
No. 1-09-2840
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 08 CR 17933
)
EMMERITT ADAIR, ) The Honorable
) Arthur F. Hill, Jr.,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE GARCIA delivered the opinion of the court.
Following a jury trial, the defendant was convicted of two
counts of possession of a controlled substance and sentenced to
seven years' imprisonment. The defendant contends the evidence
was insufficient to prove he possessed at least 15 but less than
200 pills of methylenedioxymethamphetamine (MDMA or ecstacy) and
at least 5 but less than 15 grams of methamphetamine, where the
forensic chemist commingled each pill and powder before testing
for the presence of each controlled substance. The defendant
also challenges the imposition of certain fees and fines,
contending some should be offset by the daily $5 presentencing
custody credit he earned.
We reduce the defendant's convictions to the lowest class
for each offense; the State failed to prove the essential
elements of quantity of MDMA pills and weight of methamphetamine
because the testing method employed by the chemist rendered her
No. 1-09-2840
quantity and weight findings speculative. We affirm the
imposition of the $200 DNA analysis fee and the $25 court
services fee, but vacate the $5 court system fee. Based on his
days in presentencing custody, the defendant is entitled to
$1,970 credit against all fines (but not fees) imposed. We
remand for a new sentencing hearing.
BACKGROUND
The defendant was arrested with a bag containing suspected
narcotics in the form of 24 pills and some loose powder according
to the arresting officer. The defendant was indicted on two
counts: one count of possession with intent to deliver more than
15 but less than 200 pills of MDMA, and one count of possession
with intent to deliver at least 5 but less than 15 grams of a
substance containing methamphetamine, based on the crime lab
results. A jury found the defendant not guilty of intent to
deliver, but guilty of possession of each controlled substance in
the quantity and weight charged in the indictment. He was
sentenced to seven years’ imprisonment.
Chicago police officer Thomas Krob testified that on August
29, 2008, at approximately 10:30 p.m., while on patrol in a
marked squad car with his partner, Officer Phil Schulter, he
observed a 1991 blue Buick Regal being driven on Roosevelt Road
in Chicago without headlights. The officers conducted a traffic
stop of the vehicle at a gas station located at Roosevelt and
Independence. Officer Krob approached the driver397 Ill. App. 3d 215,
922 N.E.2d 1118 (2009).
In a challenge to the sufficiency of evidence, a reviewing
court will not substitute its judgment for that of the trier of
fact or reverse a conviction if any rational trier of fact could
have reached the same conclusion based on the evidence viewed in
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No. 1-09-2840
the light most favorable to the prosecution. People v. Ortiz,
196 Ill. 2d 236, 259, 752 N.E.2d 410 (2001). While great
deference is accorded to the findings of a trier of fact, a
criminal conviction cannot stand if the evidence is so improbable
or unsatisfactory as to give rise to reasonable doubt regarding
an essential element of the offense the defendant has been found
guilty of committing. Clinton, 397 Ill. App. 3d at 222.
To convict on the charge of unlawful possession of a
controlled substance, the State must prove beyond a reasonable
doubt that the substance recovered contains a controlled
substance. People v. Hagberg, 192 Ill. 2d 29, 34, 733 N.E.2d
1271 (2000). The charging instrument dictates when the quantity
or weight of the controlled substance underlying the charged
offense is an essential element to be proved beyond a reasonable
doubt. "When a defendant is charged with possession of a
specific amount of an illegal drug with intent to deliver and
there is a lesser included offense of possession of a smaller
amount, then the weight of the seized drug is an essential
element of the crime and must be proved beyond a reasonable
doubt." People v. Jones, 174 Ill. 2d 427, 428-29, 675 N.E.2d 99(1996).
A forensic chemist is generally not required to test all of
the suspected narcotic substance to opine that the recovered
substance as a whole contains narcotics. Jones, 174 Ill. 2d at
429. "[R]andom testing is permissible when the seized samples
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No. 1-09-2840
are sufficiently homogeneous so that one may infer beyond a
reasonable doubt that the untested samples contain the same
substance as those that are conclusively tested." Jones, 174
Ill. 2d at 429.
In Jones, our supreme court answered whether the weight
element was proved beyond a reasonable doubt when the weight of
three packets, not tested for the presence of the controlled
substance, was added to the weight of the two tested packets.
Jones, 174 Ill. 2d at 430. The substance in each of the seized
packets was unquestionably similar in appearance. Jones, 174
Ill. 2d at 429 (each of the five packets contained a white rocky
substance). Nonetheless, the supreme court held that the chemist
was required to "test a sufficient number of packets to prove
beyond a reasonable doubt that defendant possessed one gram or
more of cocaine." Jones, 174 Ill. 2d at 430. In other words,
though a sample of each of the two packets tested positive for
cocaine to support an inference beyond a reasonable doubt that
each of the two packets as a whole contained cocaine, the
inference could not be drawn that the three untested packets
contained cocaine to permit the weight of the untested three
packets to be added to the weight of the tested packets to meet
the weight element of the charged offense. Jones, 174 Ill. 2d at
430.
In so ruling, the Jones court contrasted the recovered
packets with a recovered substance that is sufficiently
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No. 1-09-2840
homogeneous: "the five packets [in this case] containing loose
substances cannot be equated with identically marked and stamped
tablets, pills, or capsules." Jones, 174 Ill. 2d at 430. The
court discussed People v. Kaludis, 146 Ill. App. 3d 888, 891-92,
497 N.E.2d 360 (1986), to reinforce this point. In Kaludis "a
forensic chemist visually examined 100 tablets and determined
that they had identical marking, lettering characteristics,
bevelling, and scoring," which permitted the testing of three
tablets to conclusively establish the presence of a controlled
substance in all 100 tablets. Jones, 174 Ill. 2d at 429. Thus,
a positive test of a random sample gives rise to an inference
that all of the recovered pills or tablets contain the controlled
substance only when the pills or tablets are sufficiently
homogeneous. By the same token, when the seized samples are not
sufficiently homogeneous, testing must be done on each distinct
sample. "[W]hen such samples are not sufficiently homogeneous, a
portion from each container or sample must be tested in order to
determine the contents of each container or sample." Jones, 174
Ill. 2d at 429. This requirement means that each container or
sample must be tested independently to conclusively determine
that the contents of that container or sample contains a
controlled substance.
The charges here stemmed from the defendant's possession of
a bag of powder and pills of various colors with different
markings. In testing these pills for the presence of an illegal
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No. 1-09-2840
substance, the forensic chemist placed all of the pills and
powder into a weigh dish and found the seized substance weighed
6.3 grams. The chemist then crumbled portions of each individual
pill and fragment into a representative sample dish, which also
contained a portion of the loose powder. From this
representative sample, a smaller sample was tested for the
presence of each controlled substance. The representative sample
tested positive for the presence of MDMA and methamphetamine.
Based on this testing method, the chemist opined that at least 15
pills contained MDMA and at least 5 grams of the seized substance
contained methamphetamine.
It is evident that the pills in the bag seized from the
defendant were not identically marked, stamped, or even of the
same color. On the contrary, the chemist testified that the 21
pills and 3 pill fragments were of five different colors: three
yellow pills; four lavender pills; eight orange pills; six red
pills; and two green pill chunks. Based on the visible
appearance of the pills, there is no credible contention that the
pills were sufficiently homogeneous to permit random sampling.
Jones, 174 Ill. 2d at 429 ("random testing is permissible when
the seized samples are sufficiently homogeneous").
The chemist here, however, did not rely on random sampling
to test for the controlled substances in this case. The chemist
testified that she believed she tested all 21 pills and 3 pill
fragments for the presence of the controlled substances by adding
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No. 1-09-2840
powder from each into the representative sample dish, along with
some of the loose powder in the bag.
The defendant argues that based on test results on the
single representative sample for testing purposes, the chemist's
opinion that at least 15 pills contained MDMA is speculative.
Relying on the same reasoning, the defendant contends that the
cumulative weight of the bag's contents is insufficient evidence
to prove beyond a reasonable doubt that a sufficient number of
pills in the recovered bag contained methamphetamine to meet the
five-gram threshold. We agree.
According to the defendant's statement, he purchased 25
pills the night of his arrest. According to the inventory sheet
he completed, the officer was able to observe only 24 pills,
along with a small amount of powder. By the time the chemist
received the inventoried bag, she observed 21 pills, 3 pill
fragments, and some powder. The chemist described the pills as
crumbling easily when touched.
In accordance with Jones and Clinton, the chemist here was
required to test the seized pills by a method that would produce
an evidentiary finding as to the number of pills that contained
each controlled substance to meet the quantity and weight
elements of the charged offenses beyond a reasonable doubt.
Jones, 174 Ill. 2d at 429 ("when such samples are not
sufficiently homogeneous, a portion from each container or sample
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No. 1-09-2840
must be tested in order to determine the contents of each
container or sample"); Clinton, 397 Ill. App. 3d at 223 (chemist
improperly "combined six packets of suspected heroin before
determining whether each of the packets did, in fact, contain
heroin"). While the chemist testified that in her experience,
MDMA and methamphetamine were often found in the same pill, she
did not testify that she found both controlled substances in any
one pill in this case. Rather, the chemist testified that she
believed she properly tested all 21 pills and 3 fragments for the
presence of the controlled substances in a single
"representative" sample. The chemist was mistaken in her
reasoning. Clinton, 397 Ill. App. 3d at 222 (the chemist erred
in combining the contents of packets before testing each for the
presence of heroin).
The representative sample the chemist used to test for the
presence of each controlled substance was over-inclusive. To
illustrate the fault in the sampling method, the State cannot
tell us whether all orange pills contained both MDMA and
methamphetamine. The same, of course, can be said of each of the
other four colors of pills and fragments.
We need not be chemists to deduce that had all eight orange
pills contained both MDMA and methamphetamine, the powder from
each orange pill added to the representative sample would cause
the test sample to test positive for both MDMA and
methamphetamine, even if all the other pills contained inert
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No. 1-09-2840
substances. See Clinton, 397 Ill. App. 3d at 223 (we "cannot
speculate that each of the packets [commingled into a single
sample for testing] contained heroin"). This result explains the
rule in Jones: When distinct samples are seized, a representative
sample of each distinct sample must be tested to conclusively
determine the chemical composition of that sample. Jones, 174
Ill. 2d at 429 ("a portion from each *** [nonhomogeneous] sample
must be tested in order to determine the contents of each ***
sample"). Given the five colors of pills in this case, at the
very least each color grouping of pills had to be treated as a
separate sample and tested independently for the presence of each
controlled substance. Jones, 174 Ill. 2d at 429; Clinton, 397
Ill. App. 3d at 222.
Though it may be true that MDMA and methamphetamine were
present in all five of the different colored pills, as our
supreme court recognized, the ease with which such a conclusion
can be drawn is no substitute for "a finding *** based on [the]
evidence." Jones, 174 Ill. 2d at 430. Without evidence that all
the pills had a similar chemical composition, a single
representative sample cannot give rise to a finding that all the
nonhomogeneous pills in this case contained both substances.
Such a finding is based on nothing more than guess, speculation,
and conjecture. Jones, 174 Ill. 2d at 430.
Recognizing that the pills could not be treated as if they
were sufficiently homogeneous, the State contends that the
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No. 1-09-2840
defendant, by possessing the pills in a single bag, "commingled"
the pills to permit the chemist to rely on a single
representative sample for testing purposes. The State notes it
was the defendant, "not the police, [that] dumped all of the
narcotics together into one bag." (Emphasis in original.)
Premised on this indisputable observation, the State claims the
hypothetical in People v. Coleman, 391 Ill. App. 3d 963, 971, 909
N.E.2d 952 (2009), dictates the outcome here rather than the
reasoning in Jones and Clinton. In Coleman, the court noted that
had the defendant "dumped" 900 grams of baking soda into a bag
containing 15 grams of a substance containing cocaine, "the two
substances would become one substance" so that the defendant
would be chargeable with 915 grams of a substance containing
cocaine. Coleman, 391 Ill. App. 3d at 972-73.
The State's comparison of the multicolored pills in this
case to the Coleman example of cocaine and baking soda does not
hold up. Cocaine and baking soda have appearances that are
visually indistinguishable; the pills in this case were different
to the naked eye. Each color grouping of pills required
independent testing to conclusively establish the chemical
composition of those pills no less so than packets containing a
similar white rocky substance must be separately tested to
establish that each contains cocaine. Jones, 174 Ill. 2d at 429(a sufficient number of packets containing a white rocky
substance were required to be tested).
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No. 1-09-2840
There is no authority for the State's contention that its
burden to demonstrate the number of pills that contained MDMA and
to prove the weight of the pills that contained methamphetamine
was lifted simply because the defendant "dumped" 24 or 25 pills
into a single bag. See Jones, 174 Ill. 2d at 430 (with the
untested packets in its possession, the State was in the best
position to answer whether those packets "contained cocaine or
mere look-alike substances"). That the State's claim is
disingenuous can be further demonstrated by a Coleman-like
example: Had the defendant, before he was arrested, placed
similarly colored pills into separate bags, the prosecution would
not have treated the contents of the five bags as separate
offenses if all the pills had independently tested positive for
both MDMA and methamphetamine. We add, nor should it.
Nor does the State's use of "commingled" fit the common
understanding of the word. Commingling is the combining of
different substances such that the original substances can no
longer be distinguished, much as in the example in Coleman
regarding cocaine and baking powder. Coleman, 391 Ill. App. 3d
at 972-73 (when dumped together, baking soda and cocaine "become
one substance"). To support its "commingling" contention, the
State observes in its brief "that all of the pills were covered
in a red powder," according to the testimony of the chemist. The
State argues that all of the pills "having upon them" this red
powder (quoting 720 ILCS 570/402(a)(7.5)(A) (West 2006)), "the
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No. 1-09-2840
red powder on the pills also qualifies defendant for conviction
for the possession of the full weight of the pills."
If that was the State's theory, all it needed to do was to
have the chemist test this "red powder" to confirm that it
contained both MDMA and methamphetamine. Because it did not do
so, we decline the State's invitation to speculate that the "red
powder" was a controlled substance.
Finally, commingling did occur here. The chemist testified
that the powder she took from each of the pills and fragments to
add to the representative sample was indistinguishable from the
powder already in the mix. The commingling of distinct pills was
done by the chemist, not the defendant.
We reject the State's claim that the defendant "commingled"
the pills to permit a single representative sample for testing
purposes.
In this case, the single sampling method used by the chemist
does not support an evidentiary finding beyond a reasonable doubt
that each of the pills and fragments the defendant possessed
contained the two controlled substances. The representative
sample created by the chemist by mixing powder from each of the
21 pills, 3 fragments, and powder cannot give rise to a credible
finding that at least 15 pills contained MDMA or that at least 5
grams of the 6.3 grams of the seized samples contained
methamphetamine as charged in the indictment. Pursuant to
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No. 1-09-2840
Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)), we
reduce the defendant's convictions to the lowest class for each
offense. See 720 ILCS 570/402(c) (West 2008) (possession of less
than 15 MDMA pills is a Class 4 felony); 720 ILCS 646/60(b)(1)
(West 2008) (possession of less than five grams of
methamphetamine is a Class 3 felony).
Monetary Penalties
The defendant next contends the trial court improperly
assessed certain fees, and the fines imposed should be offset by
his presentencing custody credit. Whether fines and fees are
properly imposed raises a question of statutory interpretation,
subject to de novo review. In re Estate of Dierkes, 191 Ill. 2d
326, 330, 730 N.E.2d 1101, 1103 (2000).
$200 DNA Analysis Fee
The defendant contends the trial court erred in assessing
the $200 DNA analysis fee (730 ILCS 5/5-4-3 (West 2008)) because
he was assessed this same fee in a prior conviction.
Section 5-4-3(j) of the Unified Code of Corrections mandates
that following a qualifying felony conviction, a $200 DNA
analysis fee be assessed against a defendant. 730 ILCS 5/5-4-
3(j) (West 2008). The DNA "fees *** collected by the clerk of
the court [are] forwarded to the State Offender DNA
Identification System Fund for deposit." 730 ILCS 5/5-4-3(k)(2)
(West 2008).
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No. 1-09-2840
The defendant argues that because his DNA is already on file
with the Illinois State Police, he should not be subject to the
DNA analysis fee, relying on our recent decision in People v.
Evangelista, 393 Ill. App. 3d 395, 399, 912 N.E.2d 1242 (2009)
(vacating the DNA fee imposed on a defendant with a prior
conviction because once "a defendant has submitted a DNA sample,
requiring additional samples would serve no purpose").
The State responds that there is nothing in the record to
support the defendant229 Ill.
2d 322, 344, 892 N.E.2d 1047 (2008).
We prefer to address the defendant's claim directly. There
are decisions in this district contrary to the holding in
Evangelista. See People v. Hubbard, No. 1-09-0346, slip op. at
3-5 (September 17, 2010); People v. Grayer, No. 1-09-0021, slip
op. at 7 (August 24, 2010); People v. Marshall, 402 Ill. App. 3d
1080, 931 N.E.2d 1271 (2010). In disagreeing with Evangelista,
these decisions note that the statute does not expressly require
a fee for every felony conviction, but the statute also does not
expressly preclude multiple DNA fees following a conviction in
separate cases. See, e.g., Grayer, slip op. at 6 ("nothing in
the statutory language limits the taking of DNA samples or the
assessment of the analysis fee to a single instance").
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No. 1-09-2840
We add to the observations in the decisions upholding
multiple DNA fees that the collected fees may be used to cover a
variety of costs incurred by the State crime laboratory beyond
"analysis and categorization into genetic marker grouping." 730
ILCS 5/5-4-3(j) (West 2008). One such example is that the fees
may be used to cover "Costs incurred in the purchase and
maintenance of equipment for the use in performing analysis."
730 ILCS 5/5-4-3(k)(3)(C) (West 2008). Because the fund into
which the DNA analysis fee is deposited is available to cover a
variety of costs, we cannot agree that multiple fee assessments
"would serve no purpose" as the court suggested in Evangelista,
393 Ill. App. 3d at 399.
The DNA fee was properly assessed against the defendant,
even if his assertion is correct that this is the second time he
has been charged this fee.
$25 Court Services Fee
The defendant contends the trial court erred in assessing
the $25 court services fee. 55 ILCS 5/5-1103 (West 2008).
Section 5-1103 of the Counties Code expressly provides that the
purpose of this fee is to defray "court security expenses
incurred by the sheriff in providing court services." 55 ILCS
5/5-1103 (West 2008). The section provides that in criminal
cases, and cases involving ordinance, traffic, and conservation
violations, the court services fee will be assessed upon a
finding of guilt. The fee is also assessed when dispositions
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No. 1-09-2840
short of a judgment are entered, including supervision and
probation without entry of a judgment. By its express language,
the court services fee applies as well to all civil litigants.
"Such fee shall be paid in civil cases by each party at the time
the filing of the first pleading, paper or other appearance." 55
ILCS 5/5-1103 (West 2008).
Our primary goal in construing a statute is to ascertain and
give effect to the intent of the legislature. MidAmerica Bank,
FSB v. Charter One Bank, FSB, 232 Ill. 2d 560, 565, 905 N.E.2d
839 (2009). The intent of the legislature is best determined
from the language of the statute itself, read as a whole and
given its plain and ordinary meaning. People v. Santiago, 236
Ill. 2d 417, 428, 925 N.E.2d 1122 (2010). We will not depart
from the plain language of a statute by reading into it
exceptions, limitations, or conditions that conflict with the
legislature's expressed intent. People v. Martinez, 184 Ill. 2d
547, 550, 705 N.E.2d 65 (1998).
Based on the encompassing language of the statute and its
clear purpose of defraying court security expenses, we are
unpersuaded that the failure to list the offenses the defendant
committed means he cannot be required to defray the expenses
incurred by the sheriff for his court proceedings. We reject the
defendant's reading of the statute as authorizing a court
services fee only for a conviction involving the single section
of the Criminal Code of 1961 listed, section 5/12-4.3 (aggravated
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No. 1-09-2840
battery of a child). The limited application of section 5-1103
in criminal proceedings the defendant advocates is inconsistent
with the legislature's clear intent, expressed in the plain
language of the statute, in enacting such a fee.
The court services fee was properly assessed following the
defendant's convictions.
$5 Court System Fee
The State concedes that the imposition of the $5 court
system fee (55 ILCS 5/5-1101(a) (West 2008)) was improper because
this provision applies only upon conviction "for violation of the
Illinois Vehicle Code" or "similar provisions contained in county
or municipal ordinances." We agree. The court system fee is
vacated.
Presentencing Custody Credit
The defendant correctly asserts that he is entitled to a $5-
per-day credit for each day spent in custody before he was
sentenced. 725 ILCS 5/110-14 (West 2008). The mittimus shows
the defendant received credit for 394 days spent in presentence
custody, entitling him to a credit of $1,970. Whether that
credit can offset a monetary penalty turns on whether the penalty
constitutes a fine or a fee. 725 ILCS 5/110-14(a) (West 2008);
People v. Jones, 223 Ill. 2d 569, 580, 861 N.E.2d 967 (2006). By
their plain language, the DNA analysis fee and the court services
fee are not fines. They cannot be offset by the custody credit
earned by the defendant. See People v. Tolliver, 363 Ill. App.
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3d 94, 97, 842 N.E.2d 1173 (2006), citing 725 ILCS 5/110-14 (West
2002). Because we reduced the defendant