2017 IL App (1st) 152090
No. 1-15-2090
Opinion filed March 31, 2017
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 14 CR 4172 (01)
)
SAMMY TRICE, ) The Honorable
) Carol M. Howard,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justice Hall concurred in the judgment and opinion.
Justice Lampkin specially concurred, with opinion.
OPINION
¶1 After a bench trial, defendant Sammy Trice was convicted of delivery of
a controlled substance and sentenced to six years with the Illinois Department
of Corrections (IDOC).
No. 1-15-2090
¶2 On appeal, defendant claims: (1) that the State failed to establish a
proper chain of custody for the controlled substance, although it was the subject
of a stipulation between the parties; and (2) that both the fines and fees order
and the mittimus should be corrected.
¶3 The State agrees that the fines and fees order must be corrected to reflect
a total amount owed of $954 and that the mittimus must be corrected to reflect a
single count of delivery of a controlled substance, rather than manufacture and
delivery as currently indicated. Thus, these corrections are so ordered.
¶4 However, for the following reasons, we do not find persuasive
defendant's chain-of-custody arguments, and we affirm his conviction.
¶5 BACKGROUND
¶6 On March 12, 2014, defendant Sammy Trice and codefendant Aleric
Veal were indicted for one count of delivery of a controlled substance, namely,
more than one gram of "heroin, or analog thereof." 720 ILCS 570/401(c) (West
2014). On May 6, 2014, the assistant State's Attorney (ASA) stated that
discovery was complete; and no pretrial motions were filed.
¶7 On September 19, 2014, defendant waived a jury trial, and the case
proceeded to a bench trial. The State called two witnesses: Officer Sal
DiFranco; and Officer Michael Clemons.
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¶8 At trial, Officer Sal DiFranco testified that he had been a Chicago police
officer for 12 years and that he was currently assigned to the narcotics division
of the bureau of organized crime. On November 11, 2013, he was part of a
team that conducted a controlled narcotics purchase, and he was "the
surveillance officer" whose role was to travel in a covert vehicle and observe
the transaction. To make his observations, he sometimes utilized a pair of
binoculars. The "undercover officer" was Officer Clemons, whose role was to
purchase heroin.
¶9 DiFranco testified that he observed Clemons speaking with a person,
whom he later learned was codefendant Aleric Veal, and that he observed Veal
enter the front passenger side of Clemons' undercover vehicle at 79th Street and
Exchange Street. DiFranco followed Clemons' vehicle to the corner of 118th
Street and South Sangamon Street, where Clemons parked, and Veal exited the
vehicle. The neighborhood was residential with single-family homes. Veal then
met a man standing on the sidewalk, whom DiFranco identified as defendant.
¶ 10 DiFranco testified that, using his binoculars, he observed Veal hand
defendant United States currency but DiFranco could not determine the amount.
Defendant then handed Veal "small items" that were "smaller than a quarter."
DiFranco did not testify about the number of "small items." After this "hand-to
hand transaction," DiFranco observed Veal walk directly back to the
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undercover vehicle. Veal approached the driver's side, where he held a short
conversation with Clemons, and then Veal reached his hand through the front
driver's side window.
¶ 11 DiFranco testified that, as Veal approached the undercover vehicle,
defendant was still standing on the street but then defendant began walking
southbound.
¶ 12 On cross, DiFranco testified that, after Clemons picked up Veal, they
stopped at a house. DiFranco testified that, after Veal exited the undercover
vehicle, Clemons stated on his police radio that Veal had to stop at his mother's
house. Then Veal returned to Clemons' vehicle and they drove toward 117th
Street and Sangamon Street.
¶ 13 On cross, DiFranco testified that, during the hand-to-hand transaction,
DiFranco was 30 to 40 feet away, and he used binoculars. Although he has
access to video cameras and photographic cameras, he did not use them. The
transaction took only "seconds." After the transaction, Veal spoke for a few
"seconds" with Clemons and then Veal entered the passenger side of Clemons'
vehicle. DiFranco did not observe them drive away because, when defendant
started walking southbound, DiFranco "wanted to be ahead of the game in the
surveillance and [he] gambled and went south on 118th" Street and lost sight of
defendant.
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¶ 14 On cross, DiFranco testified that, when Veal met initially with defendant,
DiFranco provided a description over his radio to the other surveillance
officers. On redirect, DiFranco testified that he observed other officers stop
defendant, and DiFranco was about a half a block away at that time.
¶ 15 The State's next witness was Officer Michael Clemons, who testified that
he had been with the Chicago police department for 20 years. On November
11, 2013, at 12:15 p.m., he was working as an undercover officer, and his role
was to purchase narcotics with prerecorded funds. Clemons then identified
People's Exhibt No. 1 as a photo of Veal, whom Clemons met at 79th Street and
Exchange Street. Veal was standing on the sidewalk, and then Veal entered
Clemons' undercover vehicle. First they drove to 115th Street, and Veal exited
Clemons' vehicle and entered Veal's mother's house. After Veal returned to
Clemons' vehicle, they drove to a house on South Sangamon Street. When they
arrived, Clemons handed Veal $150 in prerecorded funds, and Veal exited the
vehicle and walked over to defendant.
¶ 16 Officer Clemons testified that he observed Veal carrying the money in
his hand, as Veal walked toward defendant. Then Clemons observed Veal hand
defendant the money and defendant hand Veal "several small plastic bags." At
this time, Clemons was about 50 feet away. After this transaction, Veal walked
back to Clemons' vehicle and approached the driver's side window. Veal then
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No. 1-15-2090
handed Clemons "two small plastic bags" containing a "[t]an colored substance,
suspect heroin," which Clemons placed in his pocket. Clemons testified that he
maintained custody of them until returning to the police station.
¶ 17 Officer Clemons testified that, after Veal handed Clemons the bags, Veal
reentered Clemons' vehicle. Defendant then walked towards Clemons' vehicle
and, when defendant reached the driver's side, he stated that "we were short
$10." As a result, Clemons handed Veal ten more dollars in prerecorded funds
and Veal handed this money to defendant. Clemons and Veal then drove off
and returned to their original location, and Clemons dropped Veal off.
¶ 18 Officer Clemons testified that, after he returned to the police station, he
viewed two photo arrays, which were marked as People's Exhibit Nos. 2 and 3.
From Exhibit No. 2, Clemons identified a photo of defendant and, from Exhibit
No. 3, a photo of Veal. Clemons also inventoried the two packages he received
from Veal as one inventory item, which was Inventory No. 13044995. This
item remained locked up until it was sent to the Illinois Police Crime Lab.
¶ 19 On cross, Officer Clemons testified that, after he picked up Veal at 79th
Street and Exchange Street, Veal directed Clemons where to go. Veal stated
that "he was down at that time, he didn't have any narcotics," so "he asked
[Clemons] to take him to his source." The first place that Veal directed Clemons
to go was to a residential house on approximately 115th Street. It took about 15
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No. 1-15-2090
minutes to drive there from 79th Street and Exchange Street. Veal was in that
house 5 or 10 minutes, and Clemons lost sight of Veal while Veal was inside.
After Veal returned to Clemons' vehicle, they drove toward 117th Street and
Sangamon Street at Veal's direction. After they parked, Clemons handed Veal
the money and Veal exited the vehicle. The reason that Clemons did not exit
with Veal is that "he didn't want [Clemons] to go with him." As Clemons sat in
the vehicle, Clemons stared at the unfolding transaction. Clemons was 50 to 75
feet away.
¶ 20 On cross, Clemons testified that, after Veal exited the vehicle and
approached defendant, the transaction took only seconds. When Clemons and
Veal arrived at the location, Veal made a phone call, then took the money and
exited the vehicle. Defendant then walked toward Veal, down the street.
Clemons testified about what occurred after the transaction:
"ASSISTANT PUBLIC DEFENDER (APD): You stated that Veal
came back to the car and came to the driver's side window, right?
CLEMONS: Correct.
APD: Is that when he gave you two plastic baggies?
CLEMONS: Yes.
APD: And inside those plastic baggies were – they contained a
brownish rock-like substance suspect raw heroin, correct?
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No. 1-15-2090
CLEMONS: Right."
¶ 21 On cross, Clemons further testified, after Veal entered the passenger side,
defendant approached the driver's side, stating that "we shorted him $10."
Clemons admitted that, in his report, he did not indicate that defendant
approached Clemons' vehicle asking for more money. Ten or fifteen minutes
elapsed between the time that Clemons received the narcotics and when
Clemons and Veal drove off in Clemons' vehicle. Clemons and Veal drove to
Veal's residence on 78th Street, which took another 10 or 15 minutes. Several
surveillance officers stayed back, and several followed Clemons' vehicle.
¶ 22 On cross, Clemons testified that he had a prearranged signal to indicate
that the transaction was complete and he gave that signal when he was sitting in
his vehicle near 117th Street and Sangamon Street. Clemons testified that
defendant was not arrested on the day of the transaction, or even that same
month, but Clemons did not know the exact date.
¶ 23 The State then offered a stipulation, which was read into the record as
follows:
"ASA: Your Honor, the State doesn't have any more live witnesses.
We do have a stipulation, your Honor, that if Jason George was to testify
today he would testify that he is a forensic scientist; that he's employed
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No. 1-15-2090
by the Illinois State Police Crime Lab; that on November 13th, 2013[,] he
received Inventory No. 13044995 from –
THE COURT: 13044995?
ASA: Yes, from the Chicago Police Department; that he opened the
package; that there were two plastic items inside the package; that he
tested the said items and it did test positive for heroin. The total weight
of the two tinfoil items in the two packages was 1.1 grams. He would
further testify that he is an expert in the area of forensic chemistry and all
the equipment used was tested, calibrated and functioning properly when
he tested the items. He would further testify that a chain of custody was
maintained at all times and that[,] after testing was completed[,] he sealed
the items back up again.
So stipulated?
APD: As well as that it was 1.1 grams of powder from two items.
ASA: Positive for heroin.
APD: So stipulated.
THE COURT: That stipulation will be accepted and made part of the
record."
¶ 24 In the above stipulation, the ASA described the items both as "two plastic
items inside the package" and as "two tinfoil items in the two packages." The
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No. 1-15-2090
APD added the word "powder" to the stipulation, stating "it was 1.1 grams of
powder from two items."
¶ 25 The appellate record does not contain a copy of the lab or police reports.
¶ 26 After the trial court accepted the stipulation, the State moved into
evidence without objection People Exhibit Nos. 1, 2 and 3, which were all
photos or photo arrays; and the State rested. The defense moved for a directed
finding, which was denied, and then the defense rested.
¶ 27 The State then waived its initial closing argument, and the defense argued
first. Since defendant claims ineffective assistance of trial counsel, we describe
counsel's closing argument. The defense argued that Veal had Clemons stop at
two different locations and that, although the State would argue that the drugs
came from defendant, both testifying officers were far away from the
transaction. Defense counsel noted that the officers who arrested defendant did
not testify, and the State did not introduce the premarked funds. DiFranco
admitted that he had access to cameras but did not use one. Concerning the
chain of custody, defense counsel argued:
"APD: What you have before you is Officer Clemons' testimony that
he received two bags with brownish rock-like substance raw heroin. The
lab report that you heard stipulated to listed 1.1 grams powder substance
from two items. There is a huge difference between raw heroin in its
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No. 1-15-2090
rock brown form and powder heroin. Those are different narcotics.
Now, the officers testified to the inventory number when it was received
and it appears to match what was tested at the lab. But there is a big
difference between rock raw heroin and powder substance, Judge. Two
bags of powder heroin would not cost $150. So somewhere something
was lost in the middle."
¶ 28 Since defendant makes no claims on appeal concerning the prosecutor's
rebuttal closing argument, we do not describe it here, except to provide the
State's response to defendant's chain of custody argument:
¶ 29 "ASA: With regards to the stipulation, there was an agreement by and
through the parties that there was a chain of custody maintained and that it was
under the proper inventory number; that it was tested positive and that it was
heroin and that was a stipulation by and between the parties. If we're now
questioning that stipulation that that was not the proper package that Officer
Clemons submitted to the Illinois State Police we could have called in the
forensic scientist. It was my understanding that was not at issue today when
speaking with counsel. But it is still our argument that Officer Clemons did say
he inventoried the number and that it was sent to Illinois State Police and it was
a stipulation that forensic scientist Jason George received the inventory and
analyzed it and it was positive for heroin."
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No. 1-15-2090
¶ 30 After listening to closing arguments, the trial court found: "Despite the
inconsistencies in the testimony of Officer DiFranco and Officer Clemons I do
think there is enough here for a finding of guilty. That will be the Court's
finding. The defendant is found guilty."
¶ 31 On October 21, 2014, defense counsel stated that he was going to file a
posttrial motion but that, after receipt of the transcript, he would file a more
detailed motion. Thus, on October 22, 2012, defendant filed a posttrial motion
for a new trial claiming, generally, a failure to prove him guilty beyond a
reasonable doubt and also various due process and equal protection claims.
However, the motion contained no specifics relating to defendant's case.
¶ 32 On November 17, 2014, defendant filed a motion to reconsider which
contained specifics, including a claim that the State failed to prove defendant
guilty where "[e]vidence presented on the alleged controlled substance in the
instant case was contradictory where UCO Clemons testified that he recovered
brown rock-like raw heroin, and where the Chemist's stipulated testimony was
the substance tested was powder." On November 21, 2014, the APD observed
in court that a student had drafted the motion to reconsider, and the APD asked
the court to reschedule the matter so that the student could argue the motion.
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No. 1-15-2090
¶ 33 On December 3, 2014, the trial court heard arguments concerning
defendant's motion. With respect to chain of custody, the student argued on
behalf of defendant:
"STUDENT: Furthermore, Judge, there are substantial questions in
this case as to the substance that was, in fact, recovered. Undercover
Officer Clemons testified that he received two bags of rock-like suspect
heroin, yet at the lab the scientist testified that – or we stipulated that it
was powder-like substance. So Judge, the rock-like substance and the
powder-like substance is completely two different things. Perhaps the
officers lost the rock-like heroin. In any case, it goes to the credibility of
that whole investigation in this case, Judge, and it's also simply not
credible."
¶ 34 During his rebuttal argument on the motion, the student argued:
"STUDENT: And Judge, as to the rock-like and the powder, I believe
that's crucial in this case because the officer clearly said on the stand that
he received a rock-like heroin, yet the lab recovered and tested powder-
like heroin. That's two completely different substances, Judge."
¶ 35 With respect to the chain of custody issue, the trial court observed:
"THE COURT: Now, that seemed to be a point of disagreement between
you and the State because you're saying that the officer testified that he
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No. 1-15-2090
recovered a rock-like substance which was heroin. She's saying that he—
the officer testified that it was raw heroin, not a rock but raw."
¶ 36 The APD then looked in the transcript for Clemons' testimony on this
point and informed the court that Clemons had testified on page 41 that "it was
brown rock-like substance, suspect raw heroin." The trial court remarked: "Of
course I don't have a copy of the transcript."
¶ 37 On page 41, the transcript indicates that the following exchange occurred
during cross-examination:
"APD: Is that when he gave you two plastic baggies?
CLEMONS: Yes.
APD: And inside those plastic baggies were—they contained a
brownish rock-like substance suspect raw heroin, correct?
CLEMONS: Right."
¶ 38 Previously, on direct examination, Clemons had testified that he had
received "two small plastic bags" with a "[t]an colored substance, suspect
heroin," without mentioning the word "raw."
¶ 39 Denying defendant's motion, the trial court ruled:
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No. 1-15-2090
"THE COURT: I took detailed notes on the testimony of Officer Saul
Defranco1 and Officer Michael Clemons, and I found their testimony to
be credible.
I'm not persuaded that the difference that you point out between the
rock and the powder is persuasive—I'm not persuaded that it should
require a reversal of my decision at trial simply because I'm not sure if
the—whatever substance he originally recovered from the defendant was
such that it could break down during the process of being inventoried or
being transported or stored like a lump of sugar can be broken down into
powder. So the fact that there is some disagreement as to whether or not
it was a rock or it was raw or powder is not necessarily persuasive to this
Court.
What I did when I presided over the trial was observed the testimony
of the officers, their demeanor, and I found them to be credible; and so
based on my assessment of their credibility—that's the only thing we
have in this record, the testimony of those two officers—I find that the
State did prove the defendant guilty beyond a reasonable doubt, and I'm
going to respectfully deny your motion for new trial."
1
The spelling of the officer's last name in the transcript of the hearing on the
posttrial motion is actually "Defranco." However, during the trial transcript, his
last name was spelled "DiFranco." We used the latter spelling for consistency's
sake. Also, during trial, when asked his first name, he replied "Sal."
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No. 1-15-2090
¶ 40 After listening to factors in aggravation and mitigation, the trial court
sentenced defendant to 6 years, which was the minimum.
¶ 41 The mittimus entered on December 3, 2014, stated that defendant was
convicted of "MFG/DEL 1≤15 GR HEROIN/ANALOG." On December 3,
2014, the trial court also entered an order, stating that defendant was entitled to
a 320-day credit for time served while in pretrial custody. On appeal, defendant
argues, and the State agrees, that he should have received a $5 per day credit
against his relevant fines for each of the 320 days that he spent in pretrial
custody, for a credit of $1600 (5 times 320). However, the fines and fees order,
dated December 3, 2014, shows that he received a credit of only $60, not
$1600.
¶ 42 On December 3, 2014, defendant filed a timely notice of appeal, and this
appeal followed.
¶ 43 ANALYSIS
¶ 44 On appeal, defendant claims: (1) that the State failed to establish a
proper chain of custody for the controlled substance, although it was the subject
of a stipulation between the parties; and (2) that both the fines and fees order
and the mittimus should be corrected.
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No. 1-15-2090
¶ 45 For the following reasons, we correct both the fines and fees order and
the mittimus. However, we do not find persuasive defendant's chain-of-custody
arguments, and we affirm his conviction.
¶ 46 I. Chain of Custody
¶ 47 Defendant makes several arguments concerning the chain of custody of
the drugs in the case at bar.
¶ 48 First, in his brief to this court, defendant argues that "[r]eal evidence is
admissible" under only certain conditions and that, in order to introduce "an
object," a party must lay an adequate foundation. However, there was no
"object" that the State sought to admit at trial. The State did not seek to
introduce into evidence the actual drugs, or the plastic bags received by the
undercover officer, or the package containing the drugs which the chemist
received, examined and resealed. None of this was even marked as an exhibit.
On appeal, defendant does not claim that the evidence against him was
insufficient due to any failure by the State to introduce these objects.
¶ 49 The only exhibits which the State marked, and which were admitted into
evidence, were the three photo arrays, marked People Exhibit Nos. 1, 2 and 3;
and defendant raises no issues on appeal with respect to them. Thus, there is no
issue on this appeal regarding the allegedly erroneous admission of any "object"
or exhibit.
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No. 1-15-2090
¶ 50 Second, defendant argues that "the court should not have admitted
evidence that there was a positive test for heroin in this case." The only
evidence of a positive test was the stipulation. Defendant seems to be arguing
that the trial court should have, sua sponte, refused to admit the parties'
stipulation into evidence. However, defendant provides no caselaw concerning
a trial court's sua sponte refusal to admit an agreed stipulation into evidence.
Lozman v. Putnam, 379 Ill. App. 3d 807, 824 (2008) (a party waives a point by
failing to argue it); see also People v. Ward, 215 Ill. 2d 317, 332 (2005) ("point
raised in a brief but not supported by citation to relevant authority *** is
therefore forefeited").
¶ 51 Third, defendant argues, using facts from the stipulation, that the State
failed to prove a chain of custody for the drugs.
¶ 52 A claim that the State presented an incomplete chain of custody is not a
challenge to the sufficiency of the evidence but to its foundation and thus is
subject to forfeiture. People v. Banks, 2016 IL App (1st) 131009, ¶ 68 (citing
People v. Woods, 214 Ill. 2d 455, 471 (2005). The application of forfeiture to
such claims is particularly appropriate because a defendant's failure to object to
foundation at trial deprives the State of its opportunity to cure any deficiency in
the foundation. Banks, 2016 IL App (1st) 131009, ¶ 71 (citing Woods, 214 Ill.
2d at 470). A chain of custody challenge may be reviewed for plain error in the
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No. 1-15-2090
rare case of a complete breakdown in the chain, such as when " 'the inventory
number or description of the recovered and tested items did not match,' " so that
" 'there is no link between the substance tested by the chemist and the substance
recovered at the time of the defendant's arrest.' " Banks, 2016 IL App (1st)
131009, ¶ 68 (quoting Woods, 214 Ill. 2d at 471-72).
¶ 53 Defendant argues that there was a complete breakdown in the chain of
custody and, without this chain, the State has no case.
¶ 54 In the case at bar, defendant was charged with knowingly delivering "1
gram or more but less than 15 grams of any substance containing heroin, or an
analog thereof." 720 ILCS 570/401(c)(1) (West 2014). Thus, the State had to
prove beyond a reasonable doubt both the type and weight of the drug—both
that it was a (1) "substance containing heroin or an analog" and (2) "1 gram or
more." 720 ILCS 570/401(c)(1) (West 2014).
¶ 55 As we observed, the State did not mark as an exhibit or seek to introduce
into evidence the actual drugs or the package containing the drugs which the
chemist received, examined and resealed. As for the undercover officer, he
testified only that he received "suspect" heroin. He did not testify that the
substance was, in fact, heroin or that he had been told by any of the participants
that it was specifically heroin. He did not even testify that he had specifically
asked Veal to purchase heroin. He testified only that Veal informed him that
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No. 1-15-2090
Veal "didn't have any narcotics." The only other witness was the surveillance
officer who testified only that he witnessed a hand-to-hand transaction. The
surveillance officer could not, and did not, swear that the substance was heroin.
Without the package itself or the chemist, the only conclusive evidence of the
type and weight of the drugs was the oral description which defendant
stipulated to.
¶ 56 In essence, defendant argues that the stipulation failed to establish the
type and weight of the drugs, due to the allegedly complete breakdown in the
chain of custody between the drugs seized by the undercover officer and the
drugs tested by the chemist.
¶ 57 We do not find this argument persuasive for the following reasons.
¶ 58 First, defendant stipulated that the chemist would testify to the fact that
"a chain of custody was maintained at all times." On appeal, defendant wants to
modify that stipulation to read that a chain of custody was maintained at all
times while in the chemist's care. However, that is not how the stipulation
reads. Defendant stipulated to the fact that the chemist would testify that a
chain of custody was maintained at all times, thereby waiving any ability to
cross-examine the chemist about how he knew this fact and waiving any
objections that defendant might have otherwise had to the chemist's personal
knowledge of this fact. See Woods, 214 Ill. 2d at 474-75 ("by stipulating to the
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No. 1-15-2090
chemist's report and not raising the chain of custody issue at trial," the
defendant "affirmatively waived review").
¶ 59 Second, when defendant argues in his appellate brief that the trial court
erred in admitting the "heroin evidence," he is arguing, in essence, that the court
erred by accepting the very stipulation that his counsel agreed to. The State is
correct in arguing that the invited error doctrine would apply to this type of
argument. A person cannot invite the trial court to take an action and then
complain about that same action in a reviewing court. People v. Chatman, 2016
IL App (1st) 152395, ¶ 39 n.15 People v. Ciborowski, 2016 IL App (1st)
143352, ¶ 99; Lozman v. Putnam, 379 Ill. App. 3d 807, 828-29 (2008). The
Illinois Supreme Court has held, under " 'the doctrine of invited error,' " that a
party " 'may not request to proceed in one manner and then later contend on
appeal that the course of action was in error.' " People v. Harvey, 211 Ill. 2d
368, 385(2004) (quoting People v. Carter, 208 Ill. 2d 309, 319 (2003)). Thus,
in the case at bar, defendant cannot complain now that the trial court took an
action requested by both the parties, namely, admission of the stipulation.
Woods, 214 Ill. 2d at 475 ("It would be patently unfair to allow defendant" to
challenge the chain of custody on appeal, when he stipulated to the chemist's
report in the trial court).
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No. 1-15-2090
¶ 60 Third, defendant has failed to carry his burden of showing actual
evidence of tampering, alteration or substitution.
¶ 61 To establish a chain of custody for items with unique characteristics and
a composition that is not easily changed, the State may establish that an item is
the recovered item simply through testimony that the item is now in
substantially the same condition as when it was recovered. Banks, 2016 IL App
(1st) 131009, ¶ 69. For items that are fungible or susceptible to tampering,
contamination or exchange, the State must establish a chain of custody that is
sufficiently complete to make it improbable that the evidence has been subject
to tampering or accidental substitution. Banks, 2016 IL App (1st) 131009, ¶ 69
(citing Woods, 214 Ill. 2d at 467, and People v. Alsup, 241 Ill. 2d 266, 274
(2011)). When the State makes a prima facie case, the defendant then bears the
burden of showing actual evidence of tampering, alteration or substitution.
Banks, 2016 IL App (1st) 131009, ¶ 69 (citing Alsup, 241 Ill. 2d at 274-75).
¶ 62 In the case at bar, the State made a prima facie case where the undercover
officer testified to the chain of custody of the drugs while in his care, and the
parties stipulated that the chemist would testify that a chain of custody was
maintained at all times, and the inventory numbers given by both the
undercover officer and the chemist were the same. Woods, 214 Ill. 2d at 472
(the State established a prima facie case where "the testimony of [the police
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No. 1-15-2090
officer] and the contents of the stipulation [regarding the chemist] are consistent
in that they both speak of the same inventory number and the same number of
items").
¶ 63 In response, defendant argues that that the following facts show actual
evidence of tampering, alteration or substitution: (1) that the undercover officer
testified to receiving two plastic bags, while the stipulation made a reference to
"tinfoil," and (2) that the undercover officer testified that the heroin was "raw,"
while the stipulation concerning the chemist said "powder." First, the
stipulation referred in one place to "two plastic items inside the package" and in
another place to "two tinfoil items in the two packages." The phrase "plastic
items" corroborates the officer's testimony, while the word "tinfoil" seems at
odds with it. Thus, the stipulation does not establish a clear conflict between the
chemist's proposed testimony and the undercover officer's testimony about
receiving two plastic bags. As for the "raw" comment, defendant argued to the
trial court: "there is a big difference between rock raw heroin and powder
substance, Judge. Two bags of powder heroin would not cost $150. So
somewhere something was lost in the middle " However, defendant failed to
present any testimony to substantiate this argument.
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No. 1-15-2090
¶ 64 For these reasons, we find that defendant failed to carry his burden to
show actual evidence of tampering, alteration or substitution. Banks, 2016 IL
App (1st) 131009, ¶ 69 (citing Alsap, 241 Ill. 2d at 274-75).
¶ 65 Fourth, defendant argues that his counsel was ineffective for agreeing to
the stipulation.
¶ 66 To establish a claim of ineffective assistance of counsel, a defendant
must show both that counsel's representation fell below an objective standard of
reasonableness and that he was prejudiced by it. Banks, 2016 IL App (1st)
131009, ¶ 123. In establishing the first prong, a defendant must overcome the
presumption that counsel's conduct was the result of trial strategy and thus
generally immune from an ineffectiveness claim. Banks, 2016 IL App (1st)
131009, ¶ 123. To establish prejudice, a defendant must show a reasonable
probability that the result of the proceeding would have been different absent
counsel's deficient performance, and specifically that the deficient performance
rendered the result unreliable or fundamentally unfair. Banks, 2016 IL App (1st)
131009, ¶ 123 (citing People v. Easley, 192 Ill. 2d 307, 317-18 (2000)).
¶ 67 It would be hard to argue that trial counsel was ineffective when she was
the one who effectively inserted both "raw" into the undercover officer's
testimony, and "powder" into the chemist's stipulation. During the undercover
officer's testimony, she asked:
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No. 1-15-2090
"APD: And inside those plastic baggies were—they contained a
brownish rock-like substance suspect raw heroin, correct?
CLEMONS: Right."
¶ 68 During the stipulation, she added:
"APD: As well as that it was 1.1 grams of powder from two items.
ASA: Positive for heroin.
APD: So stipulated.
THE COURT: That stipulation will be accepted and made part of the
record."
¶ 69 Counsel then argued this discrepancy, between "rock-like" and "powder"
to the trial court in her closing argument. Although the argument did not
ultimately succeed, counsel's conduct appears to have been the result of
considered trial strategy and thus immune from an ineffectiveness claim.
Banks, 2016 IL App (1st) 131009, ¶ 123.
¶ 70 Lastly, defendant argues on appeal that the trial court erred by relying on
its own knowledge, when it denied defendant's posttrial motion for a new trial,
stating:
"THE COURT: I'm not persuaded that the difference that you point
out between the rock and the powder is persuasive—I'm not persuaded
that it should require a reversal of my decision at trial simply because I'm
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No. 1-15-2090
not sure if the—whatever substance he originally recovered from the
defendant was such that it could break down during the process of being
inventoried or being transported or stored like a lump of sugar can be
broken down into powder. So the fact that there is some disagreement as
to whether or not it was a rock or it was raw or powder is not necessarily
persuasive to this Court." (Emphasis added.)
Defendant argues that, in the above passage, the trial court relied on its own
knowledge. However, it was defendant who made the argument during closing
that "rock" and "powder" indicated two completely different substances,
without any testimony to support the argument. In response to this argument,
the trial court stated "I'm not sure." Thus, the trial court was expressing its
reluctance to rely on counsel's knowledge, not the court's.
¶ 71 II. Fines and Fees
¶ 72 On appeal, defendant claims, and the State agrees, that he should have
received a $5 per day credit for each of the 320 days that he spent in pretrial
custody, for a credit of $1600 (5 times 320). However, the fines and fees order,
dated December 3, 2014, shows that he received a credit of only $60, not
$1600.
¶ 73 The fines and fees order stated that the sum of the fines and fees was
$2554. From this amount, the order indicates that only $60 was subtracted, for
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No. 1-15-2090
a total owed of $2494. As noted, the State agrees that the fines and fees order
should be corrected to reflect that defendant's credit for pretrial custody should
be 320 times $5, or $1600 – not $60. When $1600 is subtracted from $2554,
the result is $954, which both the State and defendant agree is the total amount
owed by defendant for fines and fees. Thus, this court orders the fines and fees
order corrected to reflect: (1) a $1600 credit, not a $60 credit, for time served in
pretrial custody; and (2) a total amount owed by defendant of $954.
¶ 74 III. Mittimus
¶ 75 Defendant also asks this court to correct the mittimus to reflect that he
was convicted of one count of delivery of a controlled substance, and the State
agrees. The mittimus entered on December 3, 2014, stated that defendant was
convicted of "MFG/DEL 1≤15 GR HEROIN/ANALOG." As we may correct
the mittimus without remanding the cause to the trial court (People v. Smith,
2016 IL App (1st) 140039, ¶ 19), we direct the clerk of the circuit court to
correct the mittimus to reflect the correct offense: delivery of a controlled
substance, specifically, "1 gram or more but less than 15 grams of any
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No. 1-15-2090
substance containing heroin, or an analog thereof." 720 ILCS 570/401(c)(1)
(West 2014).
¶ 76 CONCLUSION
¶ 77 For the foregoing reasons, we affirm defendant's conviction but we order:
(1) the fines and fees order corrected to reflect (a) a $1600 credit, not a $60
credit, for time served in pretrial custody; and (b) a total amount owed by
defendant of $954; and (2) the mittimus corrected to reflect a single count of
delivery of a controlled substance, rather than manufacture and delivery as
currently indicated.
¶ 78 Affirmed; mittimus and fines and fees order corrected.
¶ 79 JUSTICE LAMPKIN, specially concurring.
¶ 80 I specially concur only in the result reached by the majority. This case,
however, does not qualify for disposition by opinion because it does not
establish a new rule of law, does not modify, explain or criticize an existing rule
of law, and does not resolve, create or avoid an apparent conflict of authority
within the appellate court. Ill. S. Ct. R. 23(a) (eff. July 1, 2011).
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