dissenting:
In this case, the majority finds that the chain of custody was sufficient. I disagree and dissent.
Defendant argues that the State failed to establish a proper chain of custody to show that the items defendant sold to Agent Espinosa were the same items that the forensic chemist determined to be cocaine for four different reasons outlined by the majority above. I need address only the first of these arguments. In that argument, defendant contends that a discrepancy existed as to the exhibit numbers used to identify the items, rendering the chain of custody insufficient. I agree with the majority that this specific issue should be addressed under a sufficiency of the evidence analysis, but find that, based on this record, the evidence was insufficient.
When introducing contraband, the State has the burden to establish a chain of custody of sufficient completeness to render it improbable that the evidence has been tampered with, exchanged, or contaminated. People v. Harris, 352 Ill. App. 3d 63 (2004). In the absence of actual evidence of tampering, substitution, or contamination, the State satisfies its burden by showing that reasonable measures were used to protect the evidence from the time that it was seized and that it was improbable that the evidence was altered. Harris, 352 Ill. App. 3d at 68-69. The purpose of these protective measures is to ensure that the substance recovered from the defendant was the same as the substance tested by the forensic chemist. Fox, 337 Ill. App. 3d at 481-82. However, the State is not required to exclude all possibilities of tampering nor does the State need to call everyone involved in the chain of custody to testify. Fox, 337 Ill. App. 3d at 482; People v. Irpino, 122 Ill. App. 3d 767, 775 (1984). Accordingly, even if there is a missing link in the chain of custody, evidence may be properly admitted if there is testimony sufficiently describing the condition of the evidence when delivered which matches the description of the evidence when examined. Harris, 352 Ill. App. 3d at 69.
I disagree with the majority and would find that the State failed to prove the chain of custody with sufficient completeness to establish that the 10 black baggies purchased by Agent Espinosa from defendant were the same items that tested positive for cocaine. Agent Espinosa testified that he purchased from Ford and defendant “ten black zip-lock baggies all containing a yellowish rock-like substance” bound with clear plastic tape, which he identified as “People’s Exhibit No. 1.” He then handed the bags to Agent Falhankel, who was responsible for handing them over to another agent who would inventory those items, which were marked “Exhibit No. 7.”
However, the stipulation provided only that DeFrancesco would testify that he tested Exhibit No. 7 and determined that it contained 1.4 grams of cocaine. The stipulation never mentioned People’s Exhibit No. 1. The State later admitted only Exhibit Nos. 1 and 2 into evidence. There is no clear evidence in the record that the items recovered by defendant were referred to as both People’s Exhibit No. 1 and Exhibit No. 7 at trial. Contrary to the majority’s statement, Agent Espinosa never identified the evidence as being marked Exhibit No. 7 only for inventory purposes and did not explain that People’s Exhibit No. 1 contained the same items he received from Ford that were marked Exhibit No. 7. Further, it is mere supposition to conclude, as the majority does, that the State admitted the evidence recovered from defendant as People’s Exhibit No. 1 when the stipulation stated only that Exhibit No. 7 contained cocaine.1
Moreover, in addition to the contradictory exhibit numbers, there was no matching description of the evidence recovered by Agent Espinosa and the evidence analyzed by the chemist to establish that the evidence was the same. Neither Agent Espinosa’s testimony nor the stipulation reference an inventory number given to the evidence recovered and tested. Additionally, neither his testimony nor the stipulation explained the condition of the evidence. Further, while Agent Espinosa described the evidence he recovered with some detail, the stipulation did not contain any description of the item tested or even the number of items tested. Lastly, the State never admitted Exhibit No. 7 into evidence.
Here, there is no testimony sufficiently describing the condition of the evidence when delivered which matches the description of the evidence when examined. Thus, I would find that the State failed to connect the evidence recovered from defendant with the evidence tested by the chemist in this case. By failing to establish a sufficient chain of custody of the cocaine under these facts, the State failed to prove that defendant delivered cocaine to an undercover agent. Based on this fatal flaw in the chain of custody, I would find that the State failed to prove defendant guilty beyond a reasonable doubt of criminal drug conspiracy and reverse his conviction.
For the reasons stated, I respectfully dissent.
I also note that the State never acknowledges this contradiction in the testimony in its brief and offers no explanation for this discrepancy.