People v. Buford

• Decision Date: 14 May 1974
• Docket Number: Nos. 58857,58858,s. 58857
• Citation: 19 Ill.App.3d 766,312 N.E.2d 796
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James BUFORD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 796

312 N.E.2d 796

19 Ill.App.3d 766

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James BUFORD, Defendant-Appellant.

Nos. 58857, 58858.

Appellate Court of Illinois, First District, Second Division.

May 14, 1974.

James J. Doherty, Public Defender, Chicago (Ira Churgin, Chicago, of counsel), for defendant-appellant.

Bernard Carey, State's Atty., Chicago (Kenneth L. Gillis, Linda West Conley, Chicago, of counsel), for plaintiff-appellee.

DOWNING, Justice.

After a bench trial in the court below, appellant James Buford (hereinafter defendant) was found guilty of the offense of possession of heroin, pursuant to the provisions of Illinois' Controlled Substances Act (Ill.Rev.Stat.1971, ch. 56 1/2 par. 1100 et seq.), and he was sentenced to a term of four months in the House of Correction.

The single issue raised on appeal is whether the State failed to establish beyond a reasonable doubt that the substance possessed by defendant was, in fact, heroin.

Prior to the calling of witnesses in the court below, the following colloquy took place between respective counsel and the court:

'Mr. Sullivan (Assistant State's Attorney): * * * Stipulate to the lab report, counsel?

'Mr. Carey (Defense Counsel): Proceed on the misdemeanor, yes. Do you have the lab report? I will.

'Mr. Sullivan: All right. Judge, for the record now, Mr. Carey will stipulate to the lab report, and therefore the state will proceed on a, we will ask leave to proceed on the misdemeanor.

'The Court: Leave granted to reduce the felony to a misdemeanor. All right.'

Officer Cox, called as a State's witness, testified, in pertinent part, that on September 17, 1971, he, along with three other police officers, executed a search warrant in a first floor apartment located at 3250 South Prairie Avenue in Chicago; that defendant was present when the search warrant was executed; that the officers found 'three hypodermic needles, and kitchen cabinet found eight syringes (sic); found one foil pack containing white powder in bedroom on a bed, and I took one pack, tin foil out of the defendant's right hand front pocket'; and that he arrested defendant.

The following colloquy then took place between the officer and counsel for the State:

'Q Did you take that contraband yourself, the foil packet to the Chicago Crime Detection Laboratory?

'A That is correct, sir.

'Q Was that returned on the 22nd of September, 1971, case number 71--12132?

'A Yes.

'Q Charles Vondrak, chemist. That was two foil packets containing total 4.45 grams tan powder which was analyzed and determined to be diacetyl morphine hydrochloride commonly refered (sic) to as heroin, is that correct, officer?

'A Yes, sir.'

In addition, three gas bills, addressed to defendant at the Prairie Avenue address, which were found in the apartment on the day of the arrest, were admitted into evidence as State's exhibits. The crime lab report, as well as the substances allegedly possessed by defendant, were never admitted into evidence as part of the State's case. The State rested its case after Officer Cox had undergone cross-examination ¹. Defendant made no motion for a directed finding of not guilty at the close of the State's case.

Defendant testified that he did not have anything in his pocket when the officer searched him; that he had never lived at the Prairie Avenue address and that he had leased the apartment for his girlfriend; that the gas and light service bills for the apartment were in his name; and that on the day of his arrest, he resided at 3649 South Giles Street in Chicago.

I.

We note at the outset, as we did recently in People v. Johnson (1st Dist.1973), 15 Ill.App.3d 680, 304 N.E.2d 688, at trial, and on this appeal, defendant's counsel has been the public defender of Cook County. While it is true, as it was in Johnson, that different assistants prosecuted the trial and the appeal, the same questions of propriety and waiver arise in the instant matter. The issue raised on this appeal involves alleged errors in the trial court by the same attorney who now on appeal complains about what he did or did not do in the trial court. Unlike our treatment of the circumstances presented in the Johnson case, we find that in this appeal we would be fully justified in disregarding the errors alleged to have been committed in the trial court. However, we will proceed to dispose of the issue presented.

II.

Defendant contends on appeal that the State failed to satisfactorily sustain its burden of proving a chain of custody of the seized substance from the moment of its seizure to the time of its analysis, which would have insured its trustworthiness as evidence against the defendnat. Defendant claims that the stipulation to the laboratory report--which is not spread upon the record before this court--established merely that a named chemist had analyzed two foil packets of tan powder and that he had determined that the substance contained therein was heroin. Further, defendant urges that Officer Cox' testimony established merely that he had obtained two packets of white powder, which he took to Chicago's Crime Detection Laboratory, and that the contraband was returned some four days later under the case number 71--12132.

The State argues, in contradistinction, that, because no objections were made to Officer Cox' testimony relative to the seized substance, and because counsel for defendant had stipulated to the contents of the laboratory report, the State sustained its burden of establishing beyond a reasonable doubt that the substance possessed by defendant was heroin.

Defendant submits that People v. Resketo (1st Dist.1972), 3 Ill.App.3d 633, 279 N.E.2d 432, is determinative of the issue presented upon this appeal. In Resketo, an arresting officer, acting pursuant to a search warrant, found defendant in possession of a vial containing white powder, which was subsequently transported to a crime laboratory. At trial, the prosecutor stated for the record, after having given an erroneous case number, that 'one plastic container containing .34 grams of white powder subjected to various chemical identity tests, determined to be amphetamines, a dangerous drug. * * * This is the defendant you arrested?' (Resketo, supra, at page 634, 279 N.E.2d at page 433.) To this last question, the arresting officer answered in the affirmative. In reversing defendant's conviction and remanding the cause for a new trial, the Resketo court held that there was a complete lack of proof that the substance found by the arresting officer was actually the same material which had been subjected to the chemical tests. In so holding, the court found that there was no evidence presented with respect to whom the vial was delivered, no evidence of its condition when delivered, and no evidence as to which laboratory the substance was delivered or that it ever reached the Chicago Police Department...