People v. Jennings
| Decision Date | 02 June 2005 |
| Docket Number | No. 1-03-3207.,1-03-3207. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry JENNINGS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Office of the State Appellate Defender, Michael J. Pelletier, Deputy Defender, Mary Ann MacLaughlan, Assistant Deputy Defender, Chicago, for Appellant.
Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Samuel Shim, Sally Dilgart, William M. Blythe, of counsel), for Appellee.
Following a bench trial, defendant Larry Jennings was convicted of possession with intent to deliver cocaine and heroin and sentenced to concurrent terms of seven and four years in prison. Defendant appeals from both his convictions and sentences, contending that the State's evidence was insufficient to support his convictions, that the trial court relied on improper evidence in finding him guilty, that his sentencing hearing was improper, and that the compulsory extraction and storage of his DNA, pursuant to section 5-4-3(a) of the Unified Code of Corrections (730 ILCS 5/5-4-3 (West 2002)), was unconstitutional. For the reasons that follow, we affirm in part and reverse in part.
At trial, Chicago police officer Trevor Stotts testified that on July 10, 2002, at approximately 5:08 p.m., he and Officers Roman and Creed responded to a call of domestic violence at the Robert Taylor homes. As he entered the building, Stotts observed defendant standing with another man approximately 40 feet away. Defendant handed the other individual a small object and accepted an unknown amount of United States currency in exchange. Stotts and the other officer approached and defendant and the other individual fled up the north stairwell. Stotts pursued them as Officer Roman ascended the central stairwell. While he gave chase, Stotts observed defendant drop a small plastic bag. Stotts recovered the bag and continued his pursuit.
Officer Roman intercepted defendant on the sixth floor and placed him in custody. Officer Stotts conducted a search of defendant's person and recovered a bag containing six smaller plastic bags of a substance Stotts believed to be cocaine. The bag Stotts had recovered in the stairwell contained 25 smaller plastic bags of suspect heroin. A search subsequent to processing yielded $705 in cash.
Officer Stotts stated that he inventoried the bag containing the 25 smaller packets of suspect heroin under number 2734281 and the bag containing the 6 smaller packets of suspect cocaine under number 2734282. He thereafter placed the suspected contraband in heat-sealed evidence envelopes, placed them in a vault, and had them sent to the state crime lab for analysis.
The parties then stipulated that Officer Stotts would proffer the above testimony as to his handling of the suspect controlled substances and that Dorothy Kernan, a forensic scientist with the Illinois State Police crime lab, would testify that she received the items under the aforementioned inventory numbers in their respective envelopes, which did not exhibit any signs of tampering. Kernan opened the envelopes, removed the enclosed items, and performed tests commonly accepted in the scientific community for ascertaining the presence of controlled substances. Kernan tested all six items contained in envelope number 2734282, which had a total weight of 1.1 grams and tested positive for the presence of cocaine. She tested one of the items contained in envelope number 2734281 and found that it tested positive for the presence of heroin. The total weight of the 25 items contained in envelope number 2734281 was 3.7 grams. Kernan would have further testified that her opinions were based upon a reasonable degree of scientific certainty and that the equipment and instruments she used in testing the items were in proper working order and were certified and calibrated.
Following closing arguments, the trial court found defendant guilty of possession with intent to deliver more than 1 gram but less than 15 grams of cocaine, in violation of section 401(c)(2) of the Controlled Substances Act (720 ILCS 570/401(c)(2) (West 2002)), and possession with intent to deliver less than 10 grams of heroin, in violation of section 401(d) (720 ILCS 570/401(d) (West 2002)). Defense counsel initially requested a presentence investigation report and for a hearing date. Following an off-record conversation between the court and counsel, the judge had the following colloquy with defendant:
The sentencing hearing ensued immediately thereafter. In aggravation, the State presented evidence of defendant's five prior felony convictions. In mitigation, defense counsel stated that at the time of his arrest, defendant had been out of prison for two years, was married and employed, and had been doing volunteer work since his release. Defendant stated to the court that he had "just got caught up in the wrong place at the wrong time" and that he "just so happen[ed] to be there."
The court then remarked that The judge went on to state that defendant was eligible for sentencing as a Class X offender and that his comments to the court were "pretty insulting" and that sentencing should be continued because the judge was "subject to drop a hammer on you [defendant] more so than if I [the judge] calm[ed] down." The judge remarked that he "might be inclined to be a little more unfair with Mr. Jennings than [he] would ordinarily be" and that it would be in defendant's best interest to let the judge "just cool out."
At a subsequent hearing, defendant apologized to the court for his previous comments. The court then sentenced defendant as a Class X offender to seven years in prison for possession of cocaine with intent to deliver and a concurrent term of four years in prison for possession of heroin with intent to deliver and ordered that defendant submit to DNA analysis. Defendant thereafter filed a motion for new trial, which the circuit court denied. This appeal followed.
Although defendant's initial argument on appeal concerns the propriety of his sentencing hearing, we deal first with the validity of his convictions.
Defendant challenges the sufficiency of the evidence to sustain his convictions for possession of controlled substances with intent to deliver by contending that the State failed to establish a sufficient chain of custody over the suspected contraband, that the State failed to provide an adequate foundation for Kernan's stipulated expert testimony, and that the State failed to prove intent to deliver beyond a reasonable doubt.
In assessing the sufficiency of the evidence to sustain a defendant's conviction, a reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Smith, 185 Ill.2d 532, 541, 236 Ill.Dec. 779, 708 N.E.2d 365 (1999). We may not substitute our judgment for that of the trial court and will not reverse a conviction unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant's guilt. People v. Lundy, 334 Ill.App.3d 819, 825, 268 Ill.Dec. 790, 779 N.E.2d 404 (2002). In order to sustain a conviction for possession of a controlled substance with intent to deliver, the State's evidence must show beyond a reasonable doubt that: (1) the defendant knew drugs were present; (2) the defendant was in immediate possession or control of the drugs; and (3) the defendant intended to deliver them. People v. Robinson, 167 Ill.2d 397, 407, 212 Ill.Dec. 675, 657 N.E.2d 1020 (1995).
Defendant first contends that his convictions should be reversed because the State failed to establish a sufficient chain of custody to connect the substances recovered from the scene of his arrest to the items found by Kernan to be cocaine and heroin. He argues that the State failed to present any evidence as to the handling and safekeeping while in the police's possession, the circumstances under which the lab received the items, or the safekeeping of the bags while they were at the lab. Defendant relies on this court's decision in People v. Cowans, 336 Ill.App.3d 173, 270 Ill. Dec. 220, 782 N.E.2d 779 (2002), where another panel held that the State is required to demonstrate that evidence has not been altered or substituted by showing that the police took reasonable protective measures to ensure that the substances taken from defendant were the same ones later tested by chemists and that any failure to establish such a connection renders the evidence insufficient to prove the defendant guilty beyond a reasonable doubt. Cowans, 336 Ill.App.3d at 177-82, 270 Ill. Dec. 220, 782 N.E.2d 779.
The State responds that defendant has waived this issue for purposes of appeal by failing to object to the admission of the evidence at trial and failing to incorporate the objection into a posttrial motion. See People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). Defendant counters, pursuant to Cowans, that his argument cannot be waived because it is a challenge to the sufficiency of the evidence, not its admissibility. Cowans, 336 Ill.App.3d at 175-76, 270 Ill.Dec. 220, 782 N.E.2d 779. We disagree.
Our supreme court recently held that a challenge to the chain of custody of an alleged controlled substance in possession...
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