People v. Spencer

• Decision Date: 06 April 2004
• Docket Number: No. 5-02-0638.,5-02-0638.
• Citation: 807 N.E.2d 1228,283 Ill.Dec. 387,347 Ill. App.3d 483
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert H. SPENCER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

807 N.E.2d 1228

347 Ill. App.3d 483

283 Ill.Dec. 387

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert H. SPENCER, Defendant-Appellant.

No. 5-02-0638.

Appellate Court of Illinois, Fifth District.

April 6, 2004.

Daniel M. Kirwan, Deputy Defender, Rita K. Peterson, Assistant Defender, Office of the State Appellate Defender, Mt. Vernon, IL, for Appellant.

Lisa Madigan, Attorney General, Gary Feinerman, Solicitor General, Linda D. Woloshin, Lionel W. Weaver, Assistant Attorneys General, Chicago, IL, for Appellee.

Presiding Justice CHAPMAN delivered the opinion of the court:

The defendant, Robert H. Spencer, was convicted of one count of unlawful manufacture of a controlled substance (720 ILCS 570/401(a)(6.5)(B) (West 2000)). The trial court sentenced him to 12 years in prison and imposed a $3,000 drug assessment, a $200 street value fine, a $100 trauma fine, and a $100 crime lab fee. On appeal, the defendant contends that (1) the State failed to lay a sufficient foundation for a forensic scientist's testimony that the substance he tested contained methamphetamine, (2) the court improperly determined the street value of the seized methamphetamine without evidence of its value, and (3) the court erred by failing to apply a $5-per-day credit against the defendant's fines. We affirm the defendant's conviction, but we vacate his street value fine and remand for further proceedings consistent with this order.

I. BACKGROUND

On July 5, 2001, Montgomery County sheriff's deputies went to the home of David Lowis to execute arrest warrants for Adam Lowis (David Lowis's son) and Joe Brown (David Lowis's girlfriend's brother). Three officers entered David Lowis's house and three entered a trailer parked on the property. The defendant answered the door of the trailer. He was wearing latex gloves. The officers found equipment indicative of methamphetamine manufacture. The officers seized ingredients and objects used in the manufacture of methamphetamine that they found on the property. Among the items of evidence seized were a wad of coffee filters (which became People's Exhibit 17 at the trial) and a glass jar containing a clear liquid (a sample of which became People's Exhibit 18).

On September 13, 2001, the defendant was indicted on one count each of criminal drug conspiracy (720 ILCS 570/405.1 (West 2000)), possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(6.5)(B) (West 2000)), unlawful possession of a controlled substance (720 ILCS 570/402(a)(6.5)(B) (West 2000)), and unlawful manufacture of a controlled substance (720 ILCS 570/401(a)(6.5)(B) (West 2000)). He was taken into custody on September 17. On September 27, the defendant posted a $25,000 bond and was released.

On March 7, 2002, the defendant was arrested for possession of methamphetamine in Shelby County. As a result, on March 28, the State filed a petition to increase the amount of his bond. On April 1, the trial court raised the defendant's bond to $100,000 but released him on his own recognizance with the condition that he enter a residential drug-abuse-treatment program. On April 8, the defendant was released from a detoxification program until a bed became available. A docket entry indicates that he was to be held on a $100,000 bond. On April 19, a bed became available at Our House, a residential drug-rehabilitation program in Charleston, Illinois, and the defendant was released so he could enter the facility's treatment program.

On May 13, 2002, the probation officer assigned to monitor the defendant's compliance with the terms of his bond notified the State's Attorney's office that the defendant had left Our House. On May 23, the State filed another motion to increase the defendant's bond, on the basis that he had failed to comply with the conditions of his earlier bond. The defendant was taken back into custody on May 28, and the court granted the State's motion and increased the defendant's bond to $200,000 on June 3.

On July 1, 2002, the defendant pleaded guilty in the Shelby County case and immediately began serving a one-year sentence in the Department of Corrections (DOC).

The defendant's trial in this matter took place over two days, on July 8 and 9, 2002. The jury returned a verdict of guilty on all four charges; however, the trial court entered a judgment of conviction only on the count for unlawful manufacture of a controlled substance (720 ILCS 570/401(a)(6.5)(B) (West 2000)). At the August 27 sentencing hearing, the court heard arguments regarding the proper amount of sentence credit the defendant was to receive for his time in pretrial detention. The State argued that he was entitled only to 62 days he had spent in jail before pleading guilty to the Shelby County possession charge, while the defendant contended that he was entitled to sentence credit for the entire 110 days he had been in custody prior to receiving a sentence in the instant case. On August 30, 2002, the trial court sentenced the defendant to 12 years' imprisonment in the DOC, with 62 days' credit. The court also imposed a drug assessment of $3,000, a street value fine of $200, a crime lab fee of $100, and a trauma fine of $100. The court did not apply a sentence credit of $5 per day to any of these fines. The defendant filed a motion to reconsider his sentence on September 4, 2002, which the court denied. He then filed the instant appeal.

II. ANALYSIS

A. Insufficient Foundation

The defendant contends that the State failed to lay a sufficient foundation for the testimony of forensic scientist Michael Cravens that People's Exhibits 17 and 18 contained methamphetamine. Although he failed to object to the testimony at the trial, the defendant urges us to consider the insufficient foundation under the plain error doctrine. We decline to do so.

At the trial, Cravens identified People's Exhibit 18 and testified that he had performed infrared spectra photometry and gas chromatography/mass spectrometry (GCMS) tests on the clear liquid. These tests indicated the presence of methamphetamine in the liquid. Likewise, Cravens identified People's Exhibit 17 and testified that he had performed a GCMS test on a rinse he had made by dissolving portions of the coffee filters in methyl alcohol. The result indicated the presence of methamphetamine on or in the filter paper. Cravens testified that he knew the results of his testing to be accurate "from the results obtained from matched existing standards of moleculars." Although he testified that these standards are reasonably and generally relied upon by experts in his field, he did not testify that the tests he performed were themselves reasonably and generally relied upon by experts in forensic science. Nor did Cravens testify that the equipment he used in performing the tests had been properly calibrated or tested.

The proponent of the testimony of an expert witness such as Cravens must show that the facts or data on which the expert's opinion is based are of a type reasonably and generally relied on by experts in the same field. People v. Bynum, 257 Ill.App.3d 502, 513, 196 Ill.Dec. 179, 629 N.E.2d 724, 732 (1994). In addition, where expert testimony is based on a mechanical or electronic device, the expert must offer some foundational proof that the device was functioning properly when it was used. Bynum, 257 Ill.App.3d at 514, 196 Ill.Dec. 179, 629 N.E.2d at 732. Had the defendant objected to Cravens' testimony that the substances he tested contained methamphetamine, admitting the testimony without further foundational testimony would have constituted reversible error.

The defendant, however, did not object. Ordinarily, a party that fails to raise an issue by a timely objection at the trial waives that issue on appeal. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124, 1130 (1988). By failing to object, the defendant deprived the State of an opportunity to correct the problem by simply asking Cravens additional questions to lay a full and proper foundation for his testimony. Because an objection for an insufficient foundation is so easily cured, Illinois courts have repeatedly held that the waiver rule is particularly appropriate where a defendant argues that the State failed to lay a sufficient foundation. People v. Rodriguez, 313 Ill.App.3d 877, 887, 246 Ill.Dec. 723, 730 N.E.2d 1188, 1196 (2000); Bynum, 257 Ill.App.3d at 514-15, 196 Ill.Dec. 179, 629 N.E.2d at 732.

The defendant, however, attempts to couch his argument in terms of the sufficiency of the evidence. As he correctly notes, a defendant cannot waive an objection to the sufficiency of the evidence. See People v. Hall, 194 Ill.App.3d 532, 535, 141 Ill.Dec. 576, 551 N.E.2d 763, 765 (1990). We find his argument unavailing. The instant case is virtually indistinguishable from Bynum. There, an Illinois State Police forensic scientist failed to testify that the instruments she had used to test a substance confiscated from the defendant were properly calibrated or that the types of tests she had conducted were reasonably and generally relied on in her field. Bynum, 257 Ill.App.3d at 514,196 Ill.Dec. 179,629 N.E.2d at 732. There, as here, in order to obtain a conviction the State was required to prove that the substance was, in fact, a controlled substance. However, given the ease with which the State could have corrected the problem by asking additional foundational questions, the Bynum court found the issue to be waived by the defendant's failure to object on the proper grounds. Bynum, 257 Ill. App.3d at 515,196 Ill.Dec. 179,629 N.E.2d at 733. We likewise conclude that the defendant here has waived this argument by his failure to object to Cravens' testimony at all.

B. Street Value Fine

The defendant contends that the trial court erred in setting his street value fine at $200 without any evidentiary basis. The State counters that the defendant has waived this issue on appeal by failing to...