People v. Clayborne

• Decision Date: 23 March 2020
• Docket Number: Appeal No. 3-17-0518
• Citation: 155 N.E.3d 569,440 Ill.Dec. 799,2020 IL App (3d) 170518
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Oscar L. CLAYBORNE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (3d) 170518

155 N.E.3d 569

440 Ill.Dec. 799

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Oscar L. CLAYBORNE, Defendant-Appellant.

Appeal No. 3-17-0518

Appellate Court of Illinois, Third District.

Opinion filed March 23, 2020

James E. Chadd, Peter A. Carusona, and Jay Wiegman, of State Appellate Defender's Office, of Ottawa, for appellant.

Stewart J. Umholtz, State's Attorney, of Pekin (Patrick Delfino, Thomas D. Arado, and Justin A. Nicolosi, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Oscar L. Clayborne, appeals his conviction for unlawful possession of a controlled substance with intent to deliver. Defendant argues that the Tazewell County circuit court erred in admitting expert testimony regarding testing performed on the substance on the basis that the State failed to provide an adequate foundation for this testimony. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendant was charged with unlawful possession of a controlled substance with intent to deliver ( 720 ILCS 570/401(a)(2)(A) (West 2016)) in that he knowingly possessed with the intent to deliver more than 15 grams but less than 100 grams of a substance containing cocaine.

¶ 4 A jury trial was held. Therese Risen testified that she and her sister, Barb Eckhart, were traveling in a vehicle on Interstate 474 on the date of the incident. The right lane of traffic was blocked off due to construction, the left lane was open, and there was an open shoulder on the left side of the road. Risen was driving in the left lane. A black Mercedes passed her on the left shoulder. Risen saw the driver of the black Mercedes throw clear plastic bags containing a white substance from the vehicle into the construction area. A squad car passed Risen's vehicle from the left shoulder. The squad car pulled in front of Risen's vehicle and behind the black Mercedes. The squad car activated its lights, and the black Mercedes pulled over on the side of the road. Risen and Eckhart called the police and told them what they had seen. They talked to the police several times. The police said they were unable to find the bags containing the white substance. Risen told them that they were looking in the wrong place.

¶ 5 Eckhart also testified about what she had seen on the day of the incident. Eckhart's testimony was largely consistent with Risen's.

¶ 6 Police officer Jeffrey Miller testified that he was on patrol on the day of the incident. Miller was parked on a median on a four-lane highway. There was road construction in the area that he was patrolling such that only one lane was open on each side of the highway. Miller encountered defendant on the date of the incident. Miller saw that defendant was driving a vehicle that Miller had stopped a month earlier. Miller knew from a previous encounter that defendant did not have a driver's license. Miller also confirmed on his laptop that defendant's driver's license was revoked. Miller pulled out from the median to catch up to defendant's vehicle. Miller observed defendant pull onto the left shoulder of the road and pass a vehicle. Miller later learned that Risen and Eckhart were in the vehicle that defendant passed.

¶ 7 Miller initiated a traffic stop on defendant's vehicle. Miller arrested defendant for driving on a revoked license and for an outstanding warrant. Miller searched defendant's person incident to the arrest and found $7402 in cash in the front pocket of defendant's shorts. Miller placed defendant in a squad car, and he conducted an inventory search of defendant's vehicle. Miller retrieved four cell phones from the vehicle while conducting the inventory search. Miller then transported defendant to the police station.

¶ 8 Miller learned that Eckhart and Risen had contacted the police department regarding objects being thrown from the window of defendant's vehicle. While Miller was conducting the traffic stop, another officer attempted to find those items. Miller did not personally observe defendant throw anything from his vehicle. Miller interviewed defendant at the police station, and defendant denied throwing anything from his vehicle.

¶ 9 Police Chief Dale King testified that he responded after Miller effectuated a traffic stop on defendant. King received a call from dispatch saying that two citizens witnessed someone throw something from the vehicle. King spoke with one of the individuals who observed this. King attempted to locate these items on the right shoulder of the road, but he was unable to find them. Later, King reviewed a video recording of the traffic stop and spoke to the witness again. King could not see defendant throw anything from his vehicle on the video, but the video gave him a better idea of where to look for the thrown items.

¶ 10 King returned to search for the items. Thirty to forty minutes had passed since the traffic stop occurred. Approximately 50 yards from where King stopped searching the first time, he found three clear plastic bags containing a white powdery substance. King identified People's exhibit Nos. 3 and 4 as the white powdery substance that was contained in the plastic bags.

¶ 11 King testified that it was common for drug dealers to carry large amounts of cash, because selling drugs was a cash-only business. King testified that it was also common for drug dealers to have multiple cell phones. They would use different phones to contact their sources and their customers. King stated that the amount of the substance that he found—over 25.7 grams—was not a "user weight." King stated that a user would likely have, at most, 10 grams. King also said that the way it was packaged indicated that it was intended for delivery. Specifically, it was packaged in amounts of 2 to 3.5 grams per package.

¶ 12 Joni Little testified that she was a forensic scientist with the Illinois State Police. Little conducted tests on two bags of off-white powder that were collected as evidence in this case. The powder in the first bag weighed 25.7 grams, which was originally packaged in 16 knotted plastic bags. This was marked as People's exhibit No. 3. The second bag contained 1.7 grams of off-white powder and was marked as People's exhibit No. 4. Little testified that she conducted two "standard scientific tests" on the powder contained in People's exhibit No. 3: the chemical color test and the gas chromatography

mass spectrometry (GCMS) test. The chemical color test was a preliminary test, and the GCMS test was a confirmatory test. The chemical color test showed that the substances tested positive for the presence of cocaine.

¶ 13 Little explained that she performed the GCMS test by dissolving a portion of the powder contained in People's exhibit No. 3 in a liquid and introducing it into an instrument. The instrument gave her a readout that she compared to known drug standards that had been run on the instrument. The result of the GCMS test was that the substance was positive for the presence of cocaine. The prosecutor asked Little: "And based on your training, education, experience on these testings are you able to state or can you give an opinion within a reasonable degree of scientific certainty as to what's contained in Exhibit No. 3?" Defendant objected on the basis of foundation, and the court overruled the objection. Little responded: "Yes. The 25.7 grams of off-white powder does indeed contain cocaine."

¶ 14 Little testified that she conducted the same two tests on the powder contained in People's exhibit No. 4, and it tested positive for cocaine. Defense counsel again objected as to foundation. The prosecutor and defense counsel had a discussion with the court off the record. The following exchange then occurred between the prosecutor and Little:

"Q. * * * Before performing these tests, did you—were you using machines that are at the Illinois State Police Division of Forensic Services?

A. Yes, that's correct.

Q. And are these machines regularly tested and checked for accuracy?

A. They are.

Q. And at the time that you performed these tests, had they been checked for accuracy?

A. Yes. They had function checks.

Q. And were they in proper working order?

A. Yes, they were."

Little opined that, within a reasonable degree of scientific certainty, both the 25.7 grams of powder in People's exhibit No. 3 and the 1.7 grams of powder in People's exhibit No. 4 contained cocaine.

¶ 15 On cross-examination, defense counsel asked Little how the GCMS machines were checked for accuracy. Little stated that members of her drug chemistry section at the laboratory performed monthly function checks. Sometimes Little performed the function checks. There were five GCMS machines at the laboratory, and Little could not independently recall which machine she used. Little stated that she tested the substance on or about January 6, 2017. She did not know when the machines had been last checked for accuracy, but she said the logbooks at the laboratory would have that information. Little said that if there had been an indication that a machine was not functioning, it would have been taken down for maintenance. Little stated that "a number of factors" could indicate that a machine was not functioning properly, including if a preliminary test is positive but the confirmatory test is not. Little acknowledged that the preliminary tests were not always accurate. The following exchange occurred between defense counsel and Little:

"Q. When you're testing these machines for accuracy, how do you test them?

A. We have function checks called Autotunes that we do.

Q. What is a function check?

A. It's basically checking the function of the instrument."

Little stated that she had no reason to believe that she ran the GCMS tests on a machine that was not functioning properly.

¶ 16 Outside the presence of the jury, defense counsel moved to strike all of Little's testimony and conclusions regarding the GCMS tests on the basis that there was an...