specially concurring:
The majority found defendant’s conviction for intent to deliver adequately supported by the chemist’s testimony regarding the weight and contents of eight of the 18 clear packets of white substance and four of the 26 tinfoil packets of tan powder. The chemist found the eight clear packets to weigh 1.16 grams and to contain a substance containing cocaine. The four tan packets were found to weigh 0.4 grams and contain a substance containing heroin. The chemist expressed no opinion as to the contents or weight of the 32 untested packets. Despite this fact, the prosecutor repeatedly informed the jury that all 44 packets contained controlled substances and this amount indicates that defendant intended to deliver the drugs. In opening argument the prosecutor stated:
"[Y]ou will hear evidence that he had not one packet, not two, not three, not five, not ten, he had over a dozen packets of cocaine. He had over two dozen packets of heroin.”
Likewise, in closing argument, the prosecutor informed the jury that the defendant “had 44 packets of narcotics in his pocket *** that’s forty-four packets he was intending to sell.” Later the prosecutor stated:
"The remaining forty-four packets. We showed possession. It was in his right pants pocket, controlled substance.”
The prosecutor also commented in closing argument that “when you’ve got forty individual packets of a substance, that is not for one person. Please use your common sense.”
This court has repeatedly held that where separate bags or containers of a suspected drug are seized, a sample from each bag or container must be conclusively tested to prove that it contains a controlled substance. (People v. Valdez (1992), 230 Ill. App. 3d 975 (where chemist only tested and gave an opinion as to the contents of two of 53 bags, only those two bags could be considered to contain cocaine); People v. Hill (1988), 169 Ill. App. 3d 901 (where chemist only conclusively tested three of 63 bags of white powder, defendant was guilty beyond a reasonable doubt of possessing only the amount of cocaine found in those three bags).) In People v. Games (1981), 94 Ill. App. 3d 130, the chemist looked at two bags and weighed them individually; however, she subjected the contents of only one bag to chemical analysis that revealed cannabis. The court concluded that in the absence of expert testimony, no inference could be drawn concerning the composition of the untested bag. Furthermore, the court noted that they could speculate that the second bag also contained cannabis; however, a verdict must be based on evidence, not guess, speculation or conjecture.
Therefore, it was only proper for the prosecutor to inform the jury that 12, rather than 44, of the seized packets contained controlled substances. Considering the weight and contents of these 12 tested packets, if the jury had been instructed on the lesser included offense of possession of a controlled substance, it might well have concluded they did not contain an amount in excess of what could be used for personal consumption, particularly in light of the absence of other factors supporting an inference of intent to deliver. The weight to be given the testimony regarding alleged drug paraphernalia seized by the police is diminished by the fact that this evidence was destroyed by the police before trial. Furthermore, the majority finds significant the officer’s testimony that, based on his experience, the manner in which the substances were packaged was commonly used in drug trafficking. However, there is absolutely no evidence that defendant placed the substances in these packets, and the packets could just as likely have been the form in which the substance was purchased by defendant, rather than the form in which it was to be sold. People v. Crenshaw (1990), 202 Ill. App. 3d 432.
The record reveals, however, that defendant’s attorney did not object to the remarks of the prosecutor set forth above. In addition, his attorney explicitly refused the trial court’s offer of an instruction on the lesser included offense of possession of a controlled substance. For these reasons only, I concur with the result reached by the majority.