People v. Bynum

• Decision Date: 04 February 1994
• Docket Number: No. 1-92-1176,1-92-1176
• Citation: 196 Ill.Dec. 179,629 N.E.2d 724,257 Ill.App.3d 502
• Parties: , 196 Ill.Dec. 179 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard BYNUM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 724

629 N.E.2d 724

257 Ill.App.3d 502, 196 Ill.Dec. 179

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard BYNUM, Defendant-Appellant.

No. 1-92-1176.

Appellate Court of Illinois First District, Sixth Division.

Feb. 4, 1994.

Rita A. Fry, Public Defender of Cook County, Chicago (Lynne Hubanks Miller, Asst. Public Defender, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Christine Cook, Katherine S.W. Schweit, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice GIANNIS delivered the opinion of the court:

Defendant Richard Bynum was charged on June 27, 1991, by information with possession of 10 grams or less of a controlled substance. (Ill.Rev.Stat.1991, ch. 56 1/2, par. 1402.) After trial by jury, defendant was found guilty. Following the denial of defendant's post-trial motion, defendant was sentenced to a prison term of six years. Notice of appeal was timely filed and we have jurisdiction under Illinois Supreme Court Rule 603 (134 Ill.2d R. 603).

Defendant raises the following issues for review: (1) whether his lawyer's failure to file a motion to quash his arrest deprived him of a fair trial; (2) whether the trial court improperly denied his request to limit the State from introducing the nature of his prior criminal convictions, should he elect to take the stand; (3) whether the State properly established a chain of custody between the substance found by police in defendant's possession and the substance tested by the police crime lab technician; (4) whether the trial court improperly admitted certain expert testimony relating to a chemical analysis of the substance found in defendant's possession; and (5) whether defendant was denied a fair trial by prosecutorial misconduct.

On May 31, 1991, defendant was arrested by plain clothes officers on South St. Louis Street in Chicago. Two of the officers testified that they saw defendant drop a brown bag in a flower pot immediately after defendant saw them approaching. The State alleged that the bag contained the controlled substance phencyclidine, or PCP.

Officer Michael McMeel testified that he and his two partners were working the day shift on May 31, 1991. McMeel was driving an unmarked police car when he saw the defendant standing in front of a building. The defendant turned away from the police car, looked over his left shoulder towards the car and dropped a brown paper bag into a nearby flower box. Defendant then walked away from the box at a normal pace.

McMeel pulled up to the curb and the three officers got out of their car. Szura walked over to the flower box while McMeel and Daukus identified themselves as police officers and ordered defendant to stop.

While defendant was detained, Szura recovered the bag and told McMeel, "Sarge, I've got some leaf." McMeel testified that he knew "leaf" to be a street term for PCP. He also stated that defense witnesses Carolyn Collins and Marvin Brandon were not present at the scene of the incident.

At the station, McMeel saw Daukus take seven tin foil packets out of the brown bag. The evidence was placed in an envelope by Daukus and McMeel. McMeel saw Daukus leave the room with the bag. McMeel was not present when any of the identifying marks were placed on the evidence envelope.

Officer Szura was in the passenger seat while McMeel was driving. According to Szura, defendant had a paper bag in his hand, looked toward the unmarked squad car, started to walk the other direction and dropped the bag. McMeel stopped the car and Szura, who never lost sight of the bag, got out of the car and recovered the bag from the flower bed. There were no other bags in the flower bed. Szura testified that there were two or three other bags in the immediate area.

Szura reached inside the bag and opened one of the tin foil packets. He testified that the material in the bag was a crushed green plant, but that there was a considerable difference between the substance in the bag and cannabis. Szura did not initial or otherwise mark the bag or packets that he recovered. Szura, viewing defense witnesses Carolyn Collins and Marvin Brandon, also testified that they were not present at the scene of the incident.

Szura testified that he was present when Daukus counted the foil packets, placed them in a plastic envelope, heat sealed the envelope and put the envelope in a safe. Szura did not sign the inventory book although he was present when officer Daukus filled it out. Szura then went with Daukus as Daukus took the envelope "downstairs." McMeel co-signed the inventory book but did not go downstairs with Daukus and Szura. Szura identified the envelope he took downstairs with Daukus as Peoples' Exhibit # 1. Marsha Ross, a police chemist, identified Peoples' Exhibit # 1 as the evidence envelope she received from her supervisor on June 15, 1991. She did not recover the bag from the safe at the police station and did not know the name of the supervisor that gave her the envelope. It was sealed, however, and the inventory numbers on the bag matched those on the inventory sheet. The envelope contained a brown paper bag with seven foil packets of crushed green plant material.

The plant material was tested to establish that it was negative for cannabis. Ross indicated that, as a "trained analyst," she could not rule out the presence of cannabis without testing. On cross-examination, she testified that "I can't really say that [the sample appeared to be cannabis]. I had to analyze it first. We don't make decisions based upon appearance." She testified that, based upon a combination of microscopic and color tests, the substance in the packets was not cannabis.

Ross tested for the presence of PCP using two samples from the packets. Ross testified that she first did a precipitant test to get an indication of whether the substance possibly contained PCP. This test was positive, but insufficient to reach a conclusive decision. Next, Ross performed a spectrum analysis to determine conclusively whether the substance contained PCP. She testified that this test is performed by separating the suspected controlled substance from all other substances in the sample by using an extradition procedure. The results of this test were also inconclusive, however, because the sample was not completely separated from other portions of plant material. On cross-examination she stated that the graph created from the spectrum analysis did not match the "known standard."

Finally, Ross performed a gas chromatograph/mass spectrometer test or GCMS test on a single sample taken from the packets. She stated that the results of this test were conclusive and confirmed the existence of PCP. She stated that this test is done by separating the substances tested via a gas chromatograph/mass spectrometer and then comparing the results to the known standard. She testified that the known standards were part of the built-in controlled substance library which were stored in the GCMS testing device, or were available from books or from tests run on known pharmaceutical samples.

Marvin Brandon testified for the defense and presented a very different version of defendant's arrest than that offered by the State. He stated that he was in the area where defendant was arrested on May 31, 1991. Brandon saw Bynum talking with Carolyn Collins when the police arrived. Brandon, defendant and another man were all handcuffed by the police. Brandon identified McMeel and Szura as two of the officers that handcuffed them. The men were taken to the steps of a nearby porch. One of the officers walked into a nearby building, with nothing in his hands, and came out with a bag. Brandon and the other man were released and defendant was held. According to Brandon, defendant never had a bag in his hand.

On cross-examination, Brandon admitted that he had been in an elevator with defendant in the courthouse the week of the trial, but denied that defendant told him how he should testify. Brandon testified that he saw officer Szura in the elevator with them.

It was stipulated that Brandon had a June 28, 1991, conviction for attempted armed robbery.

Carolyn Collins testified that she was also in the area on the day of the incident. She stated that she was on her way to Mt. Sinai Hospital to get a prescription and stopped to talk with defendant. The police then pulled up and Collins testified that they searched her purse. Another officer brought out a paper bag. Collins never saw defendant with this bag. Collins then observed three people being taken up to the porch by police. They were handcuffed.

Collins was also in the elevator with defendant and Brandon two days before she testified, along with officer Szura. Collins testified that defendant told her only to not lose her temper and to stay calm. Both Collins and Brandon denied that defendant described officers Szura and McMeel to them.

In rebuttal, the State called Szura to the stand to testify that around 4 p.m. on November 5 he was in an elevator in the Criminal Court's Building when defendant, Collins and Brandon stepped in. He testified that defendant told the two that one officer had glasses and a moustache and another had red hair. Szura testified that he then pointed to his own red hair when the woman looked his way. He testified that she laughed and then the defendant turned and looked at him.

Defendant first argues that when the officers stopped him on the street they illegally detained him. He claims his attorney was ineffective by failing to file a motion to suppress his arrest.

In order to succeed on a claim of ineffective assistance of counsel, the defendant must show that his counsel's representation fell below an objective standard of reasonableness and deprived him of a trial "whose result was reliable." (People v. Albanese (1984), 104 Ill.2d 504, 505, 85 Ill.Dec. 441, 473 N.E.2d 1246, quoting Strickland v. Washington (1984)...