People v. Bush, 97603.

Citation214 Ill.2d 318,827 N.E.2d 455,292 Ill.Dec. 926
Decision Date24 March 2005
Docket NumberNo. 97603.,97603.
PartiesThe PEOPLE of the State of Illinois, Appellee, v. Joyce BUSH, Appellant.
CourtSupreme Court of Illinois

Michael J. Pelletier, Deputy Defender, Miriam Hallbauer, Tiffany Green, Assistant Appellate Defenders, Office of the State Appellate Defender, Chicago, for appellant.

Lisa Madigan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (Linda D. Woloshin, Assistant Attorney General, Chicago, Renee G. Goldfarb, Annette Collins, Ashley Romito, Matthew Connors, Assistant State's Attorneys, of counsel), for the People.

Justice THOMAS delivered the opinion of the court:

Defendant, Joyce Bush, was charged with two counts of possession of a controlled substance with the intent to deliver (720 ILCS 570/401(d), 407(b)(2) (West 2000)). Following a bench trial, the circuit court of Cook County convicted defendant of both counts and sentenced her to 6½ years in prison. Defendant raised several arguments on appeal, and the appellate court affirmed. No. 1-02-1187 (unpublished under Supreme Court Rule 23). We allowed defendant's petition for leave to appeal. 177 Ill.2d R. 315(a). Before this court, defendant argues that (1) the State failed to prove her intent to deliver, and (2) the State failed to prove that the substance in question was cocaine. For the reasons that follow, we affirm.

BACKGROUND

Officer Todd Olsen of the Chicago police department testified to the following facts. On September 26, 2000, at approximately 1:50 a.m., Officer Olsen was conducting narcotics surveillance on South Ridgeway with his partner, Officer Richard Pruger. On two occasions over the course of approximately five minutes, Officer Olsen observed an unknown male approach defendant, who was standing behind a wrought iron fence that fronted an apartment building. On each occasion, defendant and the man would engage in a brief conversation. Defendant would then accept an unknown amount of money from the man, walk a few feet away, reach under the fence, retrieve a small unknown item from a brown paper bag, and deliver the unknown item to the man who had just given her money. After watching the second of these transactions, Officer Olsen was convinced that he was witnessing the sale of narcotics. He and his partner returned to their squad car and pulled up in front of defendant, who was still in position behind the wrought iron fence. While Officer Pruger detained defendant, Officer Olsen retrieved the brown paper bag from underneath the fence. Inside the brown paper bag, Officer Olsen found a Ziploc bag containing a white chunk of what appeared to be crack cocaine. Defendant was placed under arrest, and a custodial search revealed two $10 bills in her pants pocket. Officer Olsen inventoried the white substance under number 2419062 and sent it to the Illinois State Police Crime Lab for testing.

Following Officer Olsen's testimony, the State tendered a stipulation entered into with defendant concerning the white substance recovered from the brown paper bag. That stipulation provided as follows:

"[I]f called to testify, Joel Gray would testify that he's a forensic scientist employed by the Illinois State Police Crime Lab. That he is an expert in the field of forensic chemistry. That he would testify that he tested the item recovered in this case inventoried under number 2419062 and used tests and procedures commonly — commonly accepted in the field of forensic chemistry for the testing of narcotics.
Based on his expertise, he would testify that that item was in fact cocaine in the amount of less than .1 gram. Also be a stipulation that that remained intact from the time it was inventoried to the time of testing at the crime lab."

The trial court accepted the stipulation without objection, and the State rested.

Defendant moved for a directed verdict, and the trial court denied the motion. After hearing closing arguments, the trial court found defendant guilty on both counts. Defendant filed posttrial motions raising several issues, none of which attacked the adequacy of the foundation for Gray's opinion. The trial court denied defendant's motions and sentenced her to 6½ years in prison. The appellate court affirmed (No. 1-02-1187 (unpublished under Supreme Court Rule 23)), and we allowed defendant's petition for leave to appeal (177 Ill.2d R. 315(a)).

ANALYSIS

Defendant raises two arguments before this court. First, defendant argues that the State failed to prove beyond a reasonable doubt that she intended to deliver the substance recovered from the brown paper bag. Second, defendant argues that the State failed to prove beyond a reasonable doubt that the substance recovered from the brown paper bag was in fact cocaine, as Gray's opinion on that point lacked an adequate foundation. We address each of these arguments in turn.

Intent to Deliver

Defendant first argues that the State failed to prove her intent to deliver the substance recovered from the brown paper bag. In support, defendant argues that the evidence at trial established only two things: (1) that defendant sold two unidentified items out of the brown paper bag; and (2) that the brown paper bag, when recovered, contained a small amount of a substance later identified as cocaine. Defendant then argues that, because Officers Olsen and Pruger did not arrest the two unidentified purchasers, there is no way of knowing what defendant actually sold them. It is entirely possible, defendant contends, that the two items sold from the bag were innocuous, while the cocaine that remained in the bag was for defendant's personal use. According to defendant, "the * * * failure to detain any alleged buyer left the trial court only to guess or speculate whether Ms. Bush had delivered a controlled substance."

In support of this argument, defendant relies primarily upon three cases. The first is People v. Cooper, 337 Ill.App.3d 106, 271 Ill.Dec. 435, 785 N.E.2d 86 (2003), which the appellate court below expressly rejected. In Cooper, as in the present case, a police officer observed the defendant standing alone at night near a vacant lot. On four occasions, the officer watched an unknown individual approach the defendant, engage the defendant in a brief conversation, and hand the defendant an unknown amount of money. The defendant would then walk a short distance to a fence post, retrieve a small item from a clear plastic bag, and hand the item to the individual, who then walked away. After the fourth such transaction, the officer moved in, arrested the defendant, and recovered the clear plastic bag, which contained nine foil packets containing a substance later identified as heroin. Cooper, 337 Ill.App.3d at 108-09, 271 Ill.Dec. 435, 785 N.E.2d 86.

On appeal, the appellate court held that this evidence was insufficient to sustain a conviction for possession of heroin with the intent to deliver. Cooper, 337 Ill.App.3d at 114,271 Ill.Dec. 435,785 N.E.2d 86. In so doing, the court first noted that "[i]n this matter, the amount of drugs recovered was a small amount that reasonably could be viewed to be intended for personal consumption." Cooper, 337 Ill.App.3d at 113, 271 Ill.Dec. 435,785 N.E.2d 86. The court then stated:

"[T]he State wants this court to assume that the four items that Cooper handed out to the four unknown individuals were heroin. Yet, it is possible that the items which Cooper handed out were innocuous. Because neither of the individuals was stopped, we do not know what Cooper handed to them. If only one of the unknown individuals had been stopped, we would not have to guess, speculate or conjecture on whether the defendant had in fact delivered the subject heroin." Cooper, 337 Ill.App.3d at 114, 271 Ill.Dec. 435, 785 N.E.2d 86.

Taking these two points together, the court "refuse[d] to assume that the untested items, including those allegedly sold to four unknown buyers, were heroin." Cooper, 337 Ill.App.3d at 114, 271 Ill.Dec. 435, 785 N.E.2d 86. Accordingly, the court held that the State failed to prove intent to deliver beyond a reasonable doubt. Cooper, 337 Ill.App.3d at 114, 271 Ill.Dec. 435, 785 N.E.2d 86.

The second case relied upon by defendant is People v. Robinson, 167 Ill.2d 397, 212 Ill.Dec. 675, 657 N.E.2d 1020 (1995), in which this court discussed the challenge of proving a defendant's intent to deliver a controlled substance. In Robinson, the court began by explaining that, "[b]ecause direct evidence of intent to deliver is rare, such intent must usually be proven by circumstantial evidence." Robinson, 167 Ill.2d at 408, 212 Ill.Dec. 675, 657 N.E.2d 1020. Consequently, whether the State proved intent to deliver in a given case "involves the examination of the nature and quantity of circumstantial evidence necessary to support an inference of intent to deliver." Robinson, 167 Ill.2d at 408, 212 Ill.Dec. 675, 657 N.E.2d 1020. The court then noted that, "[i]n controlled substance prosecutions, many different factors have been considered by Illinois courts as probative of intent to deliver." Robinson, 167 Ill.2d at 408, 212 Ill.Dec. 675, 657 N.E.2d 1020. These factors include whether the quantity of controlled substance in defendant's possession is too large to be viewed as being for personal consumption; the high purity of the drug confiscated; the possession of weapons; the possession of large amounts of cash; the possession of police scanners, beepers or cellular telephones; the possession of drug paraphernalia; and the manner in which the substance is packaged. Robinson, 167 Ill.2d at 408, 212 Ill.Dec. 675, 657 N.E.2d 1020. As a final note, the court added that "[i]n light of the numerous types of controlled substances and the infinite number of potential factual scenarios in these cases, there is no hard and fast rule to be applied in every case." Robinson, 167 Ill.2d at 414, 212 Ill.Dec. 675, 657 N.E.2d 1020.

Finally, defendant cites this court's decision in ...

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