People v. Garth
| Decision Date | 30 September 2004 |
| Docket Number | No. 1-02-3772.,1-02-3772. |
| Citation | 353 Ill. App.3d 108,817 N.E.2d 1085,288 Ill.Dec. 435 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth GARTH, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Richard A. Devine, State's Attorney of Cook County, Chicago (Assistant State's Attorneys Renee Goldfarb, Christine Cook and Lorraine M. Lynott, of counsel), for Appellee.
Office of the State Appellate Defender, Chicago (Deputy Defender Michael J. Pelletier and Assistant Appellate Defender Samuel Algozin, of counsel), for Appellant.
Following a bench trial, defendant Kenneth Garth was convicted of criminal drug conspiracy and sentenced to 12 years in prison. On appeal, defendant argues (1) that the State failed to prove him guilty beyond a reasonable doubt where it failed to establish a sufficient chain of custody showing that the items defendant sold to an undercover agent were the same items the forensic chemist determined to be cocaine; (2) that the State failed to prove him guilty beyond a reasonable doubt where it did not show that defendant entered into an agreement to sell cocaine; (3) that the State improperly introduced inadmissible hearsay testimony; and (4) that the trial court erred in admitting evidence of a separate narcotics transaction involving defendant which was irrelevant and prejudicial. For the following reasons, we affirm. We address the first two issues in this opinion. We address the third and fourth issues in a contemporaneously issued order pursuant to Supreme Court Rule 23 (166 Ill.2d R. 23).
At trial, Agent Ray Espinosa testified that he was an assistant special agent of the United States Department of Housing and Urban Development (HUD), Office of the Inspector General. On March 7, 2001, he led a task force in conducting an undercover narcotics investigation at the Ogden Courts Public Housing Development, located at 2710 West Ogden Avenue in Chicago. About 6 a.m., Agents Espinosa and Ken Popowicz proceeded to that location with a confidential informant named Bernard Watkins in an undercover vehicle. Agent Espinosa and Watkins entered the rear of the building while Agent Popowicz remained in the vehicle. As Agent Espinosa and Watkins walked up the stairs, they were approached by two individuals who told them to step into the hallway. The men asked, "What's up?" and Espinosa and Watkins told them that they were looking for some "offense," a street term for crack cocaine. Agent Espinosa identified defendant at trial as one of these two men. The other man, later identified as Alonzo Zollicofer, patted down Agent Espinosa and Watkins to search for weapons then told them to enter the stairwell. Agent Espinosa and Watkins were wearing Ryder Truck uniforms and defendant and Zollicofer asked if they could get jobs at that company. Agent Espinosa replied that he would see what he could do and asked for their names. Zollicofer told the agent that his name was "Zo" and defendant responded that his name was "Ken" or "K-dog."
Zollicofer then walked about 10 feet down the hallway and yelled at an unidentified individual for cocaine while defendant stood with Agent Espinosa and Watkins. Defendant asked them if they wanted to purchase heroin and Agent Espinosa and Watkins both replied that they were not interested in heroin, but that they wanted to purchase crack cocaine. While waiting in the hallway, Agent Espinosa saw an unidentified woman walk into the stairwell area and ask defendant for "blows," a street term for heroin. Defendant retrieved a clear plastic baggie from his pocket which held small black baggies each containing a white powder substance. After the unidentified woman gave defendant $10, he handed her one of the small black baggies and she left the building. Shortly thereafter, another woman, later identified as Rhonda Ford, approached defendant, Agent Espinosa and Watkins in the stairwell area. Defendant told Ford that Agent Espinosa was interested in purchasing 10 bags of crack cocaine and Watkins wanted to purchase 5 bags of crack cocaine. Ford replied that she only had 10 bags of cocaine left. Agent Espinosa responded that he would purchase all 10 bags and split the crack cocaine with Watkins. Defendant stated that would be fine and asked Agent Espinosa for the money. After the agent gave defendant $100, Ford handed him 10 black baggies all containing a "yellowish rock-like substance" and bound in clear plastic tape. Agent Espinosa and Watkins told defendant and Zollicofer that they would return on Friday of that week, then left the building and drove to a predetermined location for a debriefing with the surveillance and enforcement teams.
Following the debriefing, Agent Espinosa handed the 10 black baggies to Special Agent Falhankel whose duty and responsibility was to hand the evidence over to the agent responsible for inventorying the items, which were then marked "Exhibit No. 7." At trial, Agent Espinosa identified "People's Exhibit No. 1" as the 10 black baggies containing the "yellowish-white powder" and bound in clear plastic tape that he received from Ford on the date in question.
Agent Damien Salvati testified that he was a special agent with HUD's Office of the Inspector General and was working with Agent Espinosa during the long-term undercover drug operation at the Ogden Courts Public Housing Development. After the drug transaction on March 7, 2001, Agent Espinosa provided Agent Salvati with a description of defendant. Based on that description, Agent Salvati searched the Chicago police department "I-cam" photographs for previous arrests made by police in the area near 2710 West Ogden and involving individuals with the nickname "K-dog." Agent Salvati printed defendant's photograph and a few others and presented them to Agent Espinosa in a photographic array on March 12, 2001. Agent Espinosa identified defendant from the photographic lineup, then initialed and wrote the date on the back of defendant's photograph. At trial, Agent Salvati identified "People's Exhibit No. 2-A through E" as the "I-cam" photographs from the police department that he presented to Agent Espinosa in the photographic array.
The parties then stipulated:
The State then entered People's Exhibit Nos. 1 and 2 into evidence. The parties further stipulated that defendant was arrested by police in October 2001. The defense rested without presenting any evidence.
At trial, the defense focused on the identity of the individual involved in the narcotics transaction. During closing arguments, defense counsel maintained that the evidence was insufficient to prove that defendant was present on the date in question. Defense counsel argued that defendant was not arrested on the date in question and no money or contraband was recovered from his person. Counsel further argued that Agent Espinosa's identification five days after the incident, which was based on photographs of individuals with the same nickname as defendant, was insufficient to show that defendant was the individual involved in the narcotics transaction.
At the conclusion of the trial, defendant was found guilty of criminal drug conspiracy and delivery of a controlled substance. The circuit court merged the delivery of a controlled substance count and defendant was sentenced to 12 years' imprisonment for criminal drug conspiracy. The trial court subsequently denied defendant's motion for a new trial, which alleged, inter alia, that the State failed to prove him guilty beyond a reasonable doubt. After defendant's motion to reconsider his sentence was denied, defendant then filed this timely appeal.
Defendant first argues that the State failed to establish a sufficient chain of custody to demonstrate that the items Agent Espinosa purchased from defendant were the same items tested by the forensic chemist. Defendant contends that without a sufficient chain of custody connecting him to the narcotics, the State failed to prove that the substance delivered to Agent Espinosa was cocaine and thus, defendant was not proved guilty of criminal drug conspiracy beyond a reasonable doubt. The State first responds that because the chain of custody of the narcotics was not an element of criminal drug conspiracy, defendant's argument must fail.
A person commits criminal drug conspiracy when:
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