People v. Fountain

SIXTH DIVISION
February 25, 2011

No. 1-08-3459

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 07 CR 15592
)
BOBBY FOUNTAIN, ) The Honorable
) John T. Doody, Jr.,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE GARCIA delivered the judgment of the
court, with opinion.
Justices McBride and R.E. Gordon concurred in the judgment
and opinion.

OPINION

Following a guilty verdict by a jury, the defendant Bobby

Fountain contends the State failed to prove the weight element of

the charged offense beyond a reasonable doubt because the

forensic chemist did not expressly testify to having individually

tested each of the foil packets containing the suspected heroin

to meet the one-gram threshold. The defendant also argues that

the circuit court judge failed to comply with Supreme Court Rule

431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)) and improperly

assessed the DNA fee.

We affirm. The jury could have reasonably inferred from the

evidence that each foil packet was chemically tested to find the

defendant guilty beyond a reasonable doubt of possession with

intent to deliver 1.3 grams of heroin; the trial judge did not
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commit reversible error under Rule 431(b) when he asked

prospective jurors if they had "a problem with" or "disagree[d]

with" the rule's four principles of law; and we maintain our

previous rejection of the identical challenge to the DNA fee.

BACKGROUND

On June 26, 2007, the defendant was arrested and charged

with possession of at least 1 but less than 15 grams of a

substance containing heroin with intent to deliver (720 ILCS
570/401(c) (West 2008)), and a cocaine-related offense, the

conviction of which he does not challenge. At the defendant's

jury trial, the following material evidence to this appeal was

introduced.

Officer Keith Karczewski of the Chicago police department

testified that on June 26, 2007, he was conducting a narcotics

mission with his partners John Dolan and Thomas Harris. At 12:30

p.m., he was driving a covert van in the area of 4231 west

Madison in Chicago when he saw the defendant on the sidewalk

yelling "rocks, blows, rocks, blows." Based on his experience,

Officer Karczewski understood "rocks" to mean crack cocaine and

"blows" to mean heroin. Officer Karczewski parked the van on the

opposite side of the street across four lanes of traffic, and

observed the defendant for approximately 15 minutes. During his

surveillance, Officer Karczewski observed a similar event on

three separate occasions: a man would approach the defendant,

engage in a brief conversation, and exchange United States

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currency for a small item the defendant retrieved from a plastic

bag in his front right pocket. Because he believed the defendant

had engaged in narcotics transactions, Officer Karczewski

instructed Officers Dolan and Harris to approach the defendant.

Officer John Dolan testified that when he and Officer Harris

approached, the defendant volunteered that he "had a jab of blows

and a couple of rocks" in his right front pocket, which he was

selling "for a cat named Furley." Officer Dolan reached into the
defendant's right front pocket and retrieved a large plastic bag.

Inside the large bag was a smaller bag holding nine foil packets

Officer Dolan believed to be heroin, as well as two smaller bags

Dolan believed to be crack cocaine. Officer Dolan also recovered

$180 from the defendant's right front pocket. Officer Dolan

testified that he maintained constant care and control over the

items until he transferred custody of the items to Officer

Karczewski at the police station.

Officer Karczewski inventoried the cocaine, heroin, and

currency under separate, unique inventory numbers. He placed

each inventoried item into a larger evidence bag, heat-sealed the

bag, and placed it into a safe until the bag was transported to

the crime lab.

Linda Rayford, a forensic chemist with the Illinois State

Police, duly qualified as an expert, testified she received the

heat-sealed evidence bag on July 3, 2007. She opened the

evidence bag and removed the smaller bag containing nine foil

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packets of suspected heroin. Chemist Rayford testified she

weighed the nine packets separately and determined the powder

weighed 1.3 grams. She then conducted a preliminary color test

and a confirmatory test, both of which indicated the presence of

heroin. Chemist Rayford opined the nine foil packets contained

1.3 grams of heroin.

The defendant testified that on June 26, 2007, he worked as

a temporary employee at Pennant's Bakery until 5 a.m., then
walked home and took a nap. When he awoke, the defendant walked

to the Family Dollar store on the 4200 block of west Madison to

shop. He then walked to a nearby barbershop to get his hair cut,

but the shop was closed. As he waited for the shop to open, he

spoke to a man outside the shop. The defendant testified he

never exchanged items with anyone on the street, and never yelled

"rocks" or "blows." He also denied telling Officer Dolan that he

was selling drugs "for a cat named Furley."

The jury found the defendant guilty of possession with

intent to deliver at least 1 but less than 15 grams of a

substance containing heroin. The trial judge sentenced the

defendant to four years' imprisonment. The defendant was also

ordered to pay certain fines and fees, including a $200 DNA fee

pursuant to section 5-4-3 of the Unified Code of Corrections (730

ILCS 5/5-4-3 (West 2008)). This appeal followed.

ANALYSIS

The defendant initially contends reasonable doubt remains

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that he actually possessed 1.3 grams of heroin because the

forensic chemist was never questioned regarding the exact testing

procedures she followed. In the absence of explicit testimony

from the chemist that she actually tested each of the nine foil

packets of powder recovered from the defendant's pocket, he

contends his conviction must be reduced to possession of less

than one gram of heroin with intent to deliver, a Class 2 felony.

See 720 ILCS 570/401(d) (West 2008).
Sufficiency of Evidence

When confronted with a challenge to the sufficiency of the

evidence, a reviewing court does not retry the defendant; rather,

it determines whether "any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt." (Internal quotation marks omitted.) (Emphasis in

original.) People v. Ross, 229 Ill. 2d 255, 272, 891 N.E.2d 865

(2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

This standard reflects that it is the province of the jury to

determine the credibility of witnesses, assign weight to their

testimony, and resolve conflicts in the evidence. Ross, 229 Ill.

2d at 272. To overturn a conviction, the evidence must be so

improbable or unsatisfactory that reasonable doubt of the

defendant's guilt remains. Ross, 229 Ill. 2d at 272. Reasonable

doubt exists as a matter of law when the State fails to prove an

essential element of the offense. "When a defendant is charged

with possession of a specific amount of an illegal drug with

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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).

When suspected illegal drugs are seized in the form of

powder in separate packets, a sufficient number of the seized

packets must be tested to establish that the defendant possessed
the requisite amount of the illegal drug to prove the weight

element beyond a reasonable doubt. Jones, 174 Ill. 2d at 429 ("a

portion from each container or sample must be tested in order to

determine the contents of each container or sample"); cf. People

v. Clinton, 397 Ill. App. 3d 215, 223, 922 N.E.2d 1118 (2009)

(chemist improperly "combined six packets of suspected heroin

before determining whether each of the packets did, in fact,

contain heroin" (emphasis added)). In other words, the trier of

fact may not infer beyond a reasonable doubt that the powdered

substance present in the weighed but untested packets is

identical to the substance of the tested packets because powder

is not homogenous. Jones, 174 Ill. 2d at 429 ("random testing is

permissible when the seized samples are sufficiently homogenous

so that one may infer beyond a reasonable doubt that the untested

samples contain the same substance as those that are conclusively

tested").

In Jones, the defendant was arrested while in possession of

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five plastic packets, each "containing a white rocky substance."

Jones, 174 Ill. 2d at 428, 430. The State's evidence established

that two of the five packets tested positive for cocaine; the

remaining three packets, however, were not tested. Jones, 174

Ill. 2d at 428. According to the chemist, the total weight of

all five packets was 1.4 grams, but the two packets actually

tested weighed only 0.59 grams. Jones, 174 Ill. 2d at 428. The

defendant was "convicted of possession with intent to deliver 1.4
grams of cocaine." Jones, 174 Ill. 2d at 428.

On appeal, our supreme court affirmed the appellate court's

judgment to reduce the defendant's conviction in line with the

weight of the substance actually tested. Jones, 174 Ill. 2d at

430. The supreme court held that no inference could be drawn

concerning the composition of the three untested packets. Jones,

174 Ill. 2d at 430. The court reasoned that "the five packets

containing loose substances cannot be equated with identically

marked and stamped tablets, pills, or capsules." Jones, 174 Ill.

2d at 430. Absent a chemical analysis, it is "pure conjecture"

that the contents of the three untested packets also contained

cocaine, which is insufficient to prove beyond a reasonable doubt

that defendant possessed at least one gram of the illegal drug.

Jones, 174 Ill. 2d at 430.

The defendant contends that we should reach the same outcome

as in Jones. He argues in his main brief: "it is impossible to

know if each packet contained heroin, and thus whether it was

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appropriately included in the total weight." As in Jones, the

defendant contends his conviction should be reduced to the lesser

included offense.

There are, however, substantial differences between this

case and Jones. Here, the chemist expressly testified that she

weighed each of the nine packets separately. "I made sure that

each was weighed separately." In contrast to Jones, we have no

testimony from chemist Rayford that she tested less than all nine
foil packets, though the parties acknowledge that chemist

Rayford's testimony on direct examination, describing the

preliminary and confirmatory tests on the suspected heroin, is

ambiguous as to the number of packets actually tested:

"Q. Can you tell us what's a preliminary

test?

A. Preliminary tests are tests you do to

look for a certain substance.

Q. And did you do that in this case?

A. Yes.

Q. Did it result in any kind of finding?

A. Yes. The preliminary tests were

indicative of heroin.

* * *

Q. After you conducted this preliminary

test, you said that you did a confirming

test?

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A. Yes. A confirmatory analysis.

Q. What was that?

A. The GC mass spect. The gas

chromatography mass spectrometry.

Q. Can you please explain that to the

ladies and gentlemen of the jury ***?

A. That's when you take a small amount

of the sample, you put it into a glass vial
with a reagent in it and then you put it on

an instrument. And the instrument reads

what's in the vial and gives you a printout.

Q. And based on that, after running this

test, were you able to determine if there was

a unique substance in People's Exhibit 1?

A. Yes.

Q. What was that?

A. It was heroin.

* * *

Q. Based on your education, your

background, on the test that you performed on

People's Exhibit 1, did you form an opinion

as to what the controlled substance was in

People's Exhibit 1?

A. Yes, I did.

Q. What was that opinion?

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A. Positive for heroin.

Q. And what was the amount?

A. 1.3 grams."

While chemist Rayford testified that "preliminary tests"

were performed, suggesting that such tests were performed on more

than one foil packet, at other times, she spoke in the singular:

she testified to having conducted "[a] confirmatory analysis."

To support their contrary positions, each party focuses on the
first step chemist Rayford described to perform the chemical

analysis: "you take a small amount of the sample."

The defendant contends chemist Rayford's testimony that a

confirmatory test is conducted by taking "a small amount of the

sample" suggests that she tested only a random number of the nine

foil packets. He does not expressly assert that commingling

occurred. At the same time, based on the record before us, the

defendant cannot tell us the number of packets that were tested

at "random." He simply asserts the chemist tested too few.

The State on the other the hand contends that chemist

Rayford's testimony that she would have taken "a small amount of

the sample" to perform the preliminary and confirmatory tests

confirms that all nine packets were tested.

As each party acknowledges, chemist Rayford never explicitly

testified to the number of packets actually tested. Thus, the

dispositive question before us is whether the evidence permitted

the jury to infer beyond a reasonable doubt that the seized

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packets contained 1.3 grams of heroin or would such an inference

be based on "pure conjecture" under Jones. Stated differently,

in light of the evidence presented, did the jury act reasonably

in finding him guilty of possession with intent to deliver 1.3

grams of heroin. See Ross, 229 Ill. 2d at 272 ("because the

trier of fact accepted certain testimony or made certain

inferences based on the evidence does not guarantee the

reasonableness of its decision.").
The record evidence in this case is unlike the evidence in

Jones, where the chemist expressly testified that he tested only

2 of the 5 seized packets. Nor is this case like Clinton, where

the chemist testified that he commingled the seized substances

before he conducted the chemical tests. Finally, this case is

unlike People v. Adair, No. 1-09-2840 (Ill. App. Dec. 10, 2010),

where defense counsel filed a motion in limine seeking to bar the

chemist from testifying to the weights of the controlled

substances in the seized pills because the testing procedure

commingled nonhomogenous pills. Adair, slip op. at 3.

In this case, defense counsel did not challenge the disputed

scientific evidence pretrial; nor does the defendant point to

record testimony of the chemist that established the legal

shortcomings of the scientific analysis. Rather, the defendant

claims the ambiguous testimony of chemist Rayford regarding the

number of packets she tested fails to prove the weight element

beyond a reasonable doubt. We understand the defendant to

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contend that the reasonable doubt standard compels a court of

review to view ambiguous testimony as necessarily favoring the

defense.

Under our adversarial criminal justice system, each party

must challenge testimony that might lead the trier of fact to

find in favor of the other side. See People v. Wheeler, 151 Ill.

2d 298, 310-11, 602 N.E.2d 826 (1992) ("We have elected to employ

an adversary system of criminal justice in which the parties
contest all issues before a court of law.") (Internal quotation

marks omitted.) (quoting United States v. Nobles, 422 U.S. 225,

230-31 (1975), quoting United States v. Nixon, 418 U.S. 683, 709

(1974)). Under our system, we allow the jury to decide on the

inferences to be drawn from ambiguous testimony. See People v.

McDonald, 168 Ill. 2d 420, 447, 660 N.E.2d 832 (1995) (where

evidence is capable of producing conflicting inferences, "it is

best left to the trier of fact for proper resolution").

The general rule regarding review of a guilty verdict

reflects the deference accorded to the jury's assessment of the

evidence: "When reviewing a challenge to the sufficiency of the

evidence, this court considers *** the evidence in the light most

favorable to the State." People v. Wheeler, 226 Ill. 2d 92, 114,

871 N.E.2d 728 (2007). Thus, it falls to the defendant to

challenge ambiguous testimony during the course of the trial or

else risk the application of this rule on appeal.

The prosecution, too, faces the prospect of not meeting its

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burden if the evidence establishes that proper testing procedures

were not followed by the State chemist. 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"); Adair, slip

op. at 17 (it was the State's responsibility to adduce evidence

consistent with its theory of guilt; "we decline the State's

invitation to speculate" in the absence of such evidence). To
remind the State of the obvious, had the chemist been asked to

detail the testing procedure she followed regarding each of the

seized packets, this issue might not be before us.

These admonitions aside, established authority regarding

inferences guides our decision here. "An inference is a factual

conclusion that can rationally be drawn by considering other

facts. Thus, an inference is merely a deduction that the fact

finder may draw in its discretion, but is not required to draw as

a matter of law." People v. Funches, 212 Ill. 2d 334, 340, 818

N.E.2d 342 (2004). A "reviewing court must allow all reasonable

inferences from the record in favor of the prosecution." People

v. Cunningham, 212 Ill. 2d 274, 280, 818 N.E.2d 304 (2004).

However, "if only one conclusion may reasonably be drawn from the

record, a reviewing court must draw it even if it favors the

defendant." Cunningham, 212 Ill. 2d at 280. Thus, the rules

regarding inferences do not permit the defendant's assertion that

under the reasonable doubt standard we must draw from ambiguous

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testimony only the inference that favors the defendant.

Nor does the record before us support the defendant's claim

that chemist Rayford tested a random number of packets, whose

total weight was almost certainly less than a gram.1 Unlike the

testimony in Jones, the defendant's claim here that only a random

number of packets were tested amounts to conjecture.

Taking the evidence in the light most favorable to the

prosecution, which includes allowing all reasonable inferences
from the record, the jury's verdict that the defendant was guilty

of possession with intent to deliver 1.3 grams of a substance

containing heroin was reasonable. Chemist Rayford explicitly

testified that she weighed each foil packet individually. We

will not presume the chemist took inconsistent approaches in

weighing the seized packets and in testing the seized packets for

a controlled substance. See People v. Miller, 218 Ill. App. 3d

668, 673, 578 N.E.2d 1065 (1991) ("[W]here the record is unclear,

we will not presume that an improper procedure was performed.").

The jury was free to infer from the testimony regarding the

weighing process that chemist Rayford followed the same approach

in performing her chemical analysis; that is, she tested each

foil packet individually. See McDonald, 168 Ill. 2d at 447 (it

1
If each packet contained approximately the same amount of

powder, or approximately .14 grams, at least 8 packets needed to

be tested to reach the one-gram threshold.

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is for the jury to determine which inference to draw from

ambiguous evidence).

Chemist Rayford also described the confirmatory test she

would have performed on the seized substance: "[Y]ou take a small

amount of the sample, you put it into a glass vial with a reagent

in it and then you put it on an instrument. *** [T]he

instrument reads what's in the vial." From this testimony, the

jury could have reasonably concluded that each seized packet
constituted a "sample," as chemist Rayford used that term

(consistent with how that term has been used by our courts),

which meant she tested each sample. See Jones, 174 Ill. 2d at

429 ("a portion from each *** [seized] sample must be tested in

order to determine the contents of each *** sample").

In light of the deference owed to the jury's verdict,

especially when ambiguous testimony is before it, we reject the

defendant's contention that the State failed to prove the weight

element of the charged offense beyond a reasonable doubt. Absent

evidence in the record to the contrary, the jury could reasonably

infer beyond a reasonable doubt that each foil packet was tested

separately, which meant the defendant possessed with intent to

deliver 1.3 grams of heroin.

Voir Dire

The defendant next contends the circuit court failed to

comply with Rule 431(b) in questioning the venire, a claim we

would ordinarily review de novo. People v. Thompson, 238 Ill. 2d

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598, 606, 808 N.E.2d 10 (2010) (compliance with a supreme court

rule is reviewed de novo). However, the defendant neither

objected to the trial judge's voir dire nor claimed this as error

in his posttrial motion, thus forfeiting review of this claim.

People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988).

Yet, the defendant does not assert plain error to compel our

review. Thompson, 238 Ill. 2d at 611 ("When a defendant has

forfeited appellate review of an issue, the reviewing court will
consider only plain error."). Rather, he asserts that because

Rule 431(b) imposes a sua sponte duty on the trial judge, no

objection is required to preserve the alleged error: "Thus,

requiring an objection would be contrary to the purpose of the

amendment [imposing a sua sponte duty on the trial judge.]"

Case law is universally to the contrary. Outside the

context of plain error, "[a]n unbroken line of precedent mandates

that a defendant must object to claimed errors at trial and raise

them in his posttrial motions. [Citation.] Otherwise, they are

procedurally defaulted or forfeited." People v. Martinez, 386

Ill. App. 3d 153, 163, 897 N.E.2d 879 (2008) (citing People v.

Banks, 161 Ill. 2d 119, 641 N.E.2d 331 (1994) and People v.

Naylor, 229 Ill. 2d 584, 893 N.E.2d 653 (2008)). Nonetheless,

while we do not adopt the defendant's novel position that Rule

431(b) makes a claim of plain error unnecessary, we address his

contention that the voir dire conducted by the trial judge was

reversible error to give guidance to the circuit court.

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Rule 431(b) requires the trial judge to ask each potential

juror "whether that juror understands and accepts" four essential

principles of law:

"(1) that the defendant is presumed innocent

of the charge(s) against him or her; (2) that

before a defendant can be convicted the State

must prove the defendant guilty beyond a

reasonable doubt; (3) that the defendant is
not required to offer any evidence on his or

her own behalf; and (4) that the defendant's

failure to testify cannot be held against him

or her." Ill. S. Ct. R. 431(b) (eff. May 1,

2007).

In this case, Judge Doody explained each of the first three

principles to the jury venire and, after each explanation, asked

whether any juror had "a problem with" or "disagree[d] with" each

principle of law. Judge Doody then explained that the defendant

did not have to testify, and asked the venire if they would "hold

the fact that a Defendant may not testify at trial against that

Defendant?" No prospective juror expressed a disagreement with

any of the four principles of law.

In his main brief, the defendant explains the basis for his

claim of error: "The judge in this case failed to comply with

these obligations by failing to ask whether the jury both

understood and accepted the [Rule 431(b)] principles, instead

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asking whether anyone had a 'problem' or 'disagreed' with the

basic principles." In his reply brief, the defendant argues "the

failure to ensure that the jury understands and accepts the [Rule

431(b)] principles is a failure to ensure that the defendant

receives a fair and impartial jury."

The defendant does not explain, however, why the circuit

court's inquiry fell short of the rule's requirements, other than

to argue that the trial judge's failure to use the words
"understand" and "accept" rendered the voir dire "ineffective for

the purpose of determining whether each juror understood and

accepted the [Rule 431(b)] principles." Nor does the defendant

explain the manner in which he was prejudiced by the trial

judge's plain talk. For his claim of reversible error, the

defendant relies solely on the possibility that his jury may not

have been "fair and impartial" in absence of literal compliance

with the language in Rule 431(b).

We find the defendant's concern over whether his jury was

fair and impartial misplaced. The defendant fails to consider

defense counsel's role in selecting the jury that was seated to

hear his case. If there was a problem with the judge's voir

dire, defense counsel was free to inquire directly of the venire

to ensure that only "fair and impartial" jurors were selected.

See People v. Brown, 388 Ill. App. 3d 1, 10, 903 N.E.2d 863

(2009) (no reason to forego the application of the forfeiture

rule when "the defendant [had] the opportunity to ferret out any

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bias among the remaining potential jurors through voir dire

questioning to ensure his right to a fair trial").

Suffice it to say, Judge Doody did not commit reversible

error in his questioning of the venire. See People v. Glasper,

234 Ill. 2d 173, 201, 917 N.E.2d 401 (2009) ("We reject the idea

that the trial court's failure to conduct Rule 431(b)(4)

questioning makes it inevitable that the jury was biased.").

That said, the supreme court recently ruled that Rule

431(b) must be strictly followed: "Rule 431(b) *** mandates a

specific question and response process. The trial court must ask

each potential juror whether he or she understands and accepts

each of the principles in the rule." Thompson, 238 Ill. 2d at

607. Thus, after Thompson, it is likely error, though not

reversible error under our analysis in this case, not to ask

prospective jurors to respond to separate questions whether he or

she "understands" and "accepts" each of the four principles.

Modification to the language in Rule 431(b) is discouraged, much

as modification of pattern jury instructions is discouraged. See
People v. Bannister, 232 Ill. 2d 52, 87, 902 N.E.2d 571 (2008)

(State's modified instruction should not have been used "until

this court's Committee on Pattern Jury Instructions in Criminal

Cases formally revises this series of instructions").

DNA Fee

Finally, the defendant contends that Judge Doody's

imposition of the DNA fee must be vacated because he was assessed

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the same fee in an earlier conviction.

We recently rejected this precise claim in Adair:

"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' ***.

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." Adair, slip op.

at 20 (quoting and declining to follow People

v. Evangelista, 393 Ill. App. 3d 395, 399,

912 N.E.2d 1242 (2009) (second DNA fee

vacated because once "a defendant has

submitted a DNA sample, requiring additional

samples would serve no purpose")).

Nothing in the defendant's challenge persuades us to

reconsider our position.

CONCLUSION

In light of the record evidence, the jury was reasonable in

finding the defendant guilty of possession with intent to deliver

1.3 grams of a substance containing heroin. In the absence of

direct evidence to the contrary, we will not presume the State

chemist failed to test each of the nine foil packets. No

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reversible error occurred in the voir dire of the prospective

jurors by asking whether they had "a problem with" or

"disagree[d] with" the four principles of law of Rule 431(b).

Nonetheless, the circuit court must strictly follow Rule 431(b)

to avoid a finding of trial court error. Finally, we reiterate

that a defendant may be properly assessed the DNA fee even if he

was assessed that fee in a previous conviction.

Affirmed.

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