dissenting:
While certainly agreeing with the general rule of People v. Scott, 22 Ill.App.3d 770, 317 N.E.2d 736, “[t]he evidence must show that the substance is that which the State purports it to be, and that it is the same substance which was taken from the defendant’s possession,” I am unable to agree with the majority opinion. There was sufficient evidence to prove that the bag containing LSD admitted into evidence was the same bag Officer Edwards purchased from the defendant.
Upon receiving the bag Officer Edwards initialed and dated it. Even though he received a similar bag from a third party on the same day and also initialed and dated it, he identified the one received from the defendant at the trial, as did Officer Tegard, and most importantly the chemist for the Bureau of Narcotics. Officer Edwards could distinguish the two similar bags he received on the same day because the one received from the defendant was smaller. The difference in weight could be determined by physically handling the two. Further it was not necessary that the second bag be produced at trial for comparison in order to properly identify the one received from the defendant.
A sufficient continuous chain of custody was established from the time Officer Edwards received the bag from the defendant to its introduction at trial. (People v. Cain, 35 Ill.2d 184, 220 N.E.2d 195.) Officer Edwards delivered both bags to Officer Tegard for delivery to the Federal laboratory for testing. Officer Tegard also distinguished the two bags from each other. He testified that one was noticeably smaller. At the trial Tegard identified the smaller lighter bag as package no. 435 sent to the lab. The bag was returned from those tests to Tegard and was eventually produced at trial. The lab reported package no. 435, which Edwards identified as the one he received from the defendant, contained LSD. There is no “confusion” between the two bags as the majority contends, because the second bag was not introduced into evidence. In addition Officer Tegard field tested both bags immediately upon receiving them and concluded both contained LSD.
The majority sets out the distinguishing characteristics of People v. Polk, 19 Ill.2d 310, 167 N.E.2d 185. The differences between Polk and the instant case are negligible. The testimony of the officer identifying the envelope of narcotics in Polk was uncontroverted. Under our facts, presented with a complete and substantiated continuous chain of custody of the evidence, I find a lack of confusion in the identification of the bag of LSD purchased from the defendant.
Scott is so distinguishable from the present case that the rule of law applied there should not be applied here. In Scott no expert testimony of an examining chemist was offered to identify the nature of the substance received from the defendant, while in the present case such testimony was presented.
The lack of markings from which to distinguish the bag in evidence from other similar bags received by the undercover agent on the same days is a defect in police crime detection procedures which should be corrected. Nonetheless, the uncontroverted testimony of three competent officer witnesses and the facts otherwise in the present case are still sufficient to identify die exhibit introduced at the trial as the same bag Officer Edwards purchased from the defendant. I believe the elements of a sale of LSD, a controlled substance, were proved beyond a reasonable doubt.
I would affirm the judgment of the Circuit Court of Peoria County.