People v. Abram

2016 IL App (1st) 132785, 50 N.E.3d 1197

• Court: Appellate Court of Illinois
• Decided: March 7, 2016
• Docket: 1-13-2785
• Status: Unpublished

Opinion

2016 IL App (1st) 132785

FIRST DIVISION March 7, 2016

No. 1-13-2785

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 09 CR 16440 ) TREBLE ABRAM, ) Honorable ) Timothy Joyce, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE LIU delivered the judgment of the court, with opinion. Justice Connors and Justice Harris concurred in the judgment and opinion.

OPINION ¶1 On July 28, 2009, two police officers patrolling the West Woodlawn neighborhood of

Chicago responded to a call that three males with rifles had been spotted in that area. Upon

noticing defendant, Treble Abram, sitting alone inside a vehicle in an alley, the officers exited

their squad car and started walking toward him. Defendant immediately drove his car, in reverse,

out of the alley and sped away. A vehicle chase ensued for several minutes, and ended when

defendant drove into the parking lot of a police station and was taken into custody. During the

trial, various police officers involved in the chase testified that they saw items being tossed out

the driver-side window of defendant's vehicle during the pursuit. The State also presented

evidence demonstrating that substances containing cocaine were recovered from locations along

the chase route and from the driver seat in defendant's vehicle. 1-13-2785

¶2 The jury found defendant guilty of possession of a controlled substance with intent to

deliver (720 ILCS 570/401(a)(2)(A) (West 2012)), and the circuit court sentenced him to seven

years' imprisonment. On appeal, defendant contends that: (1) the circuit court erred in denying

his motion to suppress where the officers lacked reasonable suspicion to detain defendant when

they saw him in the alley; (2) the court improperly denied his request to ask prospective jurors

questions to reveal race- or drug use-related bias; (3) an audio recording of officers' statements

during the car chase should have been excluded as hearsay; (4) a proper chain of custody was not

maintained for the narcotics evidence; and (5) the State failed to establish defendant’s guilt

beyond a reasonable doubt. We affirm.

¶3 BACKGROUND

¶4 A. Defendant’s Motion to Suppress

¶5 Prior to the trial, defendant brought a motion to quash his arrest and suppress any directly

or indirectly obtained evidence. Defendant argued that, when the police officers initially

approached him in the alley, he was not breaking any law and there was no probable cause to

arrest him. Officer Szubski testified to the following during the hearing on the motion to

suppress. On July 28, 2009, he and his partner responded to a call about individuals with rifles

who had been seen near 61st Street and South Eberhart Avenue in Chicago. While patrolling the

area, they saw defendant seated alone in a '95 Chevy Impala, in the east alley of South Eberhart

Avenue. The vehicle was missing a front license plate and was obstructing the alley. The officers

stopped their squad car and approached defendant on foot to conduct a field interview.

¶6 According to Officer Szubski, as they approached him, defendant started "making some

movements" and then "threw his vehicle in reverse and fled from us." The officers then pursued

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defendant, with lights and sirens on, for approximately 11 minutes. 1 During this time, defendant

disobeyed traffic signals, drove "erratically," and drove "down numerous alleys, side streets,

through vacant lots, over sidewalks and major thoroughfares." Officer Szubski admitted that he

did not mention these infractions specifically in the incident report that he authored after the

chase; he also agreed that at no time did he see a weapon in defendant's possession or any other

occupant in the vehicle. The chase ended when defendant pulled into and stopped in the parking

lot of the Third District police station, at which point he was taken into custody. Officer Szubski

stated that, at several points during the car chase, he observed defendant move as if he was

reaching under his seat and then throw something out through the driver-side window. Although

he was not present when the discarded items were recovered by other officers, he later saw the

items and testified that, based on his experience and training, he believed them to be crack

cocaine. Officer Szubski issued defendant tickets for fleeing and eluding officers and missing a

front license plate, but not for obstructing the alley.

¶7 The defense presented testimony from defendant’s father, James Otis, and Kimberly

Pritchett, the owner of the Chevy Impala. Mr. Otis testified that, on July 28, 2009, defendant was

helping him work on a building at 6147 South Eberhart Avenue, and had parked the Impala on a

concrete slab where a garage used to be. Mr. Otis admitted that he was not present when the

officers approached his son and that defendant may have pulled off of the slab and into the alley

at that time. Ms. Pritchett testified that she had lent her vehicle to defendant sometime prior to

July 28, but that it had both a front and rear license plate when she saw it last. On cross

examination, however, she admitted that there had been a problem with the front license plate

and she could not be sure it was in place on July 28.

1 Officer Szubski testified that he was later told by his supervisor that the chase lasted 11 minutes. At trial he testified that it lasted for only six minutes. 3 1-13-2785

¶8 The circuit court denied the motion to suppress and granted the State's motion for a

directed finding that probable cause had existed for defendant's arrest. Because the testimony

presented established that defendant fled from the police and tossed items from his vehicle, the

court concluded "[t]here [wa]s before [it] no possible other explanation as to how it happened."

¶9 B. State’s Motion to Introduce the Police Call-Out Tape

¶ 10 Prior to trial, the State filed a motion in limine seeking permission to introduce an Office

of Emergency Management Communications (OEM) audio recording in which Officer Szubski

"called out" details regarding the route defendant's vehicle traveled during the July 28 chase. The

State argued that the recording was admissible under both the present sense impression and

excited utterance exceptions to the rule against hearsay, explaining that the recording consisted

of Officer Szubski’s statements alerting his fellow officers to defendant's movements as the

chase unfolded, and that the circumstances under which they were made would naturally produce

spontaneous and unreflecting statements by the officer, thus eliminating the risk of fabrication.

¶ 11 During the hearing on the State’s motion, defendant argued that: (1) the recorded

statements were entirely duplicative of, and would only serve to improperly bolster, the officers'

live testimony at trial, and (2) the sirens and other sound effects audible in the recording would

confuse or distract the jury. He further contended that the recorded statements in the recording

did not qualify as excited utterances because they were not made under the same sort of pressure

or with the same urgency as the types of statements courts deemed admissible in the authority

cited by the State, and, in some instances, were proven to be unreliable. 2 The circuit court

granted the motion, concluding that the "audio recording in real time of [a] police officer

describing his observations as he is following [defendant]," was "pretty compelling stuff ***

2 Defendant referred to, as an example, statements made by an officer and police dispatch when the officer mistakenly believed the defendant may have tossed a gun out of the window of the vehicle. 4 1-13-2785

qualifying both as an exception to the rule against hearsay under [the] present sense impression

and as an excited utterance through a spontaneous declaration."

¶ 12 C. Voir Dire

¶ 13 A jury was selected for defendant's trial from two venire panels. During its preliminary

voir dire proceeding, the circuit court explained to the prospective jurors that "a defendant is

presumed to be innocent of the charge against him" and that "[t]his presumption remains with

him throughout every stage of the trial *** and is not overcome unless from all the evidence you

are convinced beyond a reasonable doubt that the defendant is guilty." The court also explained

that "the testimony of a police officer is not to be treated any differently than any other witness's"

and that such testimony "is entitled to no greater or lesser weight than any other person's

testimony simply because of that person's status as a police officer."

¶ 14 Afterwards, the circuit court cautioned both panels as follows:

"It is essential that you not arrive at any decisions or conclusions of any

kind until you have heard all the evidence, the arguments of the attorneys, and my

instructions on the law ***."

¶ 15 After questioning the members of the venire individually, the circuit court invited the

parties' attorneys to ask additional questions. Counsel for both sides questioned the first panel but

declined to question the second. Neither side asked any questions relating to race- or drug use-

related bias of any of the potential jurors. 3 When a potential juror indicated that her son was

3 The issue of race did arise during a jury selection conference. Defense counsel expressed her concern that many African-American jurors were being dismissed for cause. Noting that there were a substantial number of African-Americans in the venire, in the 28 individuals randomly selected for questioning by the court, and in the group of 12 persons not yet called, the circuit court stated "I'll caution everybody that we are running out of African-American people and this is of concern to me." In a ruling not challenged on appeal, the circuit court also denied a motion made by defendant pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), finding that the State's challenges for cause were made "in eminent good faith and were not designed as a pretext." It further noted that the State had accepted three African-American jurors and 5 1-13-2785

murdered under what the court described as circumstances she believed "stem[med] from some

aspect of drug trade on the south side," the court suggested that she be dismissed for cause and

the parties agreed.

¶ 16 D. Evidence Presented at Trial

¶ 17 1. Encounter in the alley

¶ 18 Officer Szubski's testimony at trial was generally consistent with the account he provided

at the hearing on the motion to suppress; however, he provided a number of additional details

regarding the events leading to defendant's arrest. He testified that, at approximately 7:30 p.m.

on the date of the incident, he and his patrol partner drove to the intersection of 61st Street and

South Eberhart Avenue in response to a call about three males with rifles in the area. They

noticed defendant sitting in a black Chevy Impala with a missing front license plate in the nearby

alley, facing southward. The car was obstructing the alley. The officers pulled into the alley

facing northward, exited their squad car, and walked toward defendant to conduct a field

interview. Officer Szubski testified that defendant then “put the vehicle in reverse and proceeded

to flee.” Although he yelled for defendant to stop, defendant instead backed out of the alley and

drove eastbound on 61st Street, at which point the officers returned to the squad car, turned on

their lights and sirens, radioed for assistance, and "gave chase" after defendant.

¶ 19 When asked about his reasons for approaching defendant in the alley, Officer Szubski

stated that he and his partner approached defendant's vehicle "[t]o conduct an investigation,"

"[t]o see if [defendant] was involved with the person with a gun call." He explained that

defendant’s vehicle "could be related as far as a getaway car to the men with guns call" and that

exercised its peremptory challenges in a nondiscriminatory manner, against Caucasians and African- Americans of both sexes.

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“[t]here was [sic] a lot of variables." On cross examination, Officer Szubski conceded that there

were no men with guns in the area of 62nd Street and South Eberhart when they arrived, that he

saw no weapons on defendant, and that there were no warrants or investigative alerts for

defendant. When asked if he had any other reason to believe defendant was armed, Officer

Szubski stated: "In my training and experience, many times a getaway car is used in the

commission of offenses. That was my initial thinking at the time."

¶ 20 2. The vehicle chase

¶ 21 Along with several other police officers involved in the car chase, Officer Szubski

testified at trial about his observations during the pursuit and the items recovered from various

sites along the chase route. Officer Szubski stated that he and his partner pursued the Chevy

Impala for approximately six minutes, while simultaneously communicating defendant's location

and movements to other officers and police dispatch by radio. Officer Szubski’s statements in the

OEM audio recording, which was published to the jury, were consistent with his trial testimony

about defendant’s actions during the chase: that defendant exceeded the speed limit, drove in the

wrong direction on one-way streets, crossed lanes of traffic, drove through a vacant lot, and

drove onto a sidewalk to evade pursuing officers, finally stopping in the parking lot of the Third

District police station near Cottage Grove Avenue, where he was taken into custody by officers

from the Third District tactical team. Officer Szubski’s Traffic Pursuit Report indicated that

defendant was speeding and weaving, but it did not indicate that he drove the wrong way down

one-way streets or drove on the sidewalk.

¶ 22 3. Items recovered from the chase and vehicle

¶ 23 Officer Szubski additionally testified that, as he was pursuing defendant, he saw

defendant toss an object from the driver-side window of the car at three separate locations. He

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stated that it was still light outside and, in each instance, he was approximately one car-length

away from defendant's vehicle with nothing obstructing his view. He admitted on cross

examination, however, that although he saw defendant’s arm extending out the window, he never

saw defendant's hand or any object in his hand. Furthermore, he could not see what the

discarded items were, and he was not present when they were collected. He stated that he later

saw the substances and, based on his experience and training, believed them to be crack cocaine.

¶ 24 The State also presented testimony from Officers Michael Shrake, Aaron Petrulis, Carla

Watkins, Matthew Normand, and Victor Ramirez regarding the events of July 28, 2009. These

officers all testified that they were on patrol duty when they heard either the initial "person with

a gun" radio broadcast and/or Officer Szubski's subsequent broadcasts during the car chase.

¶ 25 People’s Exhibit No. 2

¶ 26 Officers Watkins and Normand encountered defendant's vehicle on South Martin Luther

King Drive. Watkins testified that she and her partners were driving northbound when they saw

the black Impala driving toward them—heading southbound near 6400 South Martin Luther

King Drive, followed by a marked squad car with its lights and sirens on. Officer Watkins

testified that, from a distance of between five and ten feet, she observed the driver, whose face

was not visible to her, throw a white, rock-like substance from the driver side window. After

telling her partner to stop the car, she stepped out and picked up the object from the bus lane

before returning to the squad car to continue with the chase. Officer Watkins testified that there

was nothing else in the street near the recovered items and, from the time she saw the item

thrown from the vehicle to the time she recovered it, she never lost sight of it and thereafter kept

it in her constant care, custody, and control until she arrived at the Third District police station,

when she gave it to Officer Szubski. She did not remember, however, what she picked it up with

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or specifically where she put it other than that she held onto it; she stated that she did not put it in

her pocket or on the seat of the car next to her. Based on her experience, including approximately

20 cocaine arrests, she believed the substance to be cocaine.

¶ 27 Officer Watkins then identified People's Exhibit No. 2 as the item she recovered, with her

name listed on the inventory bag, and testified that it was in substantially the same condition as

when she recovered it. Defendant sought to bar admission of this evidence, arguing the chain of

custody was uncertain during the period in which Officer Watkins testified that she could not

remember what she did with the rock she retrieved. The circuit court rejected this argument and

denied the motion, noting that, "notwithstanding Officer Watkins' lack of uncertainty with

respect to how she processed that material *** she did testify, without qualification, that she had

it in her custody, care and control continually from the time she recovered it off the street ***

until she gave it to Officer Szubski."

¶ 28 Officer Normand confirmed that Officer Watkins exited the squad car to retrieve an item

she saw thrown from the black Impala. He testified that, when she returned, she put the

substance in a rubber glove she had in her vest, where she kept it until she turned it over to

Officer Szubski at the Third District police station. Officer Normand identified People's Exhibit

No. 2 as the substance recovered by Officer Watkins and testified that, apart from the absence of

the rubber glove, it was in substantially the same condition as when she recovered it. Although

he was present when Officer Szubski sealed the evidence bag, Officer Normand could not

remember if the rubber glove was in the bag at that time or if it had been removed. On cross-

examination, he agreed that the substance was collected in the vicinity of the housing

development called Parkway Gardens, where he had personally made many cocaine arrests in the

past.

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¶ 29 Officer Szubski testified that he received the item identified at trial as People’s Exhibit

No. 2 from Officer Watkins at the police station, after she purportedly collected it from the

street. He inventoried the item according to police procedures; he filled out an electronic form,

obtained approval and the appropriate signatures, heat sealed the evidence bag, and placed it in a

safe where someone from Evidence and Recovered Property would take it to the Illinois State

Police crime lab for testing. Officer Szubski was not questioned regarding the presence or

absence of a rubber glove in the inventory bag given to him by Officer Watkins.

¶ 30 People’s Exhibit No. 14

¶ 31 Officer Shrake testified that he and officers Petrulis and Roque were at the intersection of

62nd Street and South Eberhart Avenue when he observed defendant driving a black Chevy

Impala westbound on 62nd Street, an eastbound street. According to Officer Shrake, "the driver

had a bag in his left hand and he was shaking it and banging it against the side of the driver's

door" and "[a] white rock-like substance and smaller white rock-like substance" fell out of the

bag into the middle of the street. Officer Shrake immediately exited the squad car, ran to where

the items were in the middle of the street near 517 East 62nd Street, and stood there while his

partners left to join the chase. Approximately six minutes later, his partners returned with

evidence bags and, pursuant to instructions radioed by Officer Szubski, he put the items he had

been watching over in an inventory bag and brought them to the police station. Officer Shrake

stated that he was approximately 125 feet away when he observed the items fall, it was light

outside, nothing obstructed his view, he had no problem finding the items, they never left his

sight, and they were in his constant care, custody, and control. Based on his experience,

including over 100 narcotics arrests, he believed without a doubt that the items were crack

cocaine. He additionally explained that, although he initially thought a gun was recovered and

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called this out over the radio, he was mistaken; what he saw was simply another officer picking

his own gun up and holstering it.

¶ 32 Officer Shrake testified that, once at the police station, he followed Chicago police

department procedures to inventory the items he collected: he used a police computer program to

enter information, was assigned a numbered inventory control label, obtained the desk sergeant's

signature, sealed the substance in the evidence bag, and placed it in a safe. He identified People's

Exhibit No. 14 as the same inventory bag with his signature and description of the items inside

and testified that, other than signs that the substance had been tested by the crime lab, it was in

substantially the same condition as when he recovered it.

¶ 33 People’s Exhibits Nos. 15 and 16

¶ 34 Officer Petrulis identified People's Exhibit No. 15 as the evidence bag with the substance

that he recovered from the route that defendant drove during the car chase. He testified that, not

only had he heard over the radio that items were thrown from defendant’s vehicle, but he also

saw the object as it was tossed from the driver side window. He stated that nothing was

obstructing his view and it was still light outside. He told his partner to stop the car in the middle

of the southbound lane near 6211 South Martin Luther King Drive, where he saw a white object

sitting in the middle of the lane, picked it up and put it in an evidence bag he brought with him

from the squad car. Based on his training and experience, including hundreds of narcotics arrests,

he believed the object he recovered was crack cocaine.

¶ 35 When the car chase concluded, Officer Petrulis went to the Third District police station,

where he saw defendant standing outside of his vehicle with at least a dozen other officers

present. He approached the vehicle, looked inside, and saw a "white rock-like substance" sitting

on the driver side seat. Officer Petrulis recovered this item and placed it in an evidence bag,

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proceeded to search the car, and collected a plastic bag and more broken up pieces of the same

white substance on the driver seat. He identified People's Exhibit No. 16 as the evidence bag

with his signature and handwriting on it containing the items collected from defendant's vehicle.

¶ 36 Officer Petrulis testified that both People’s Exhibits Nos. 15 and 16 were in substantially

the same condition as they were in when he collected them, and explained that after he “wrote up

the bag, [he] went into the Chicago Police CLEAR system where [he] obtain[ed] an inventory

number and actually enter[ed] all the information into the inventory system, went to the desk

sergeant, got it approved, got his approval signature on the bag, sealed the bags, and received the

receipts for those inventories."

¶ 37 Officer Ramirez testified that he was on patrol with his partner in an unmarked police car

when they heard radio communications giving the whereabouts of defendant's vehicle and made

their way to the area described. Officer Ramirez testified that he was the one who removed

defendant from his vehicle at the Third District police station and arrested him. At that point,

Officer Ramirez saw "[a]bout a cookie-size white rock-like item," a plastic bag, and some

crumbs beneath defendant on the driver seat. He was unable, however, to positively identify

People's Exhibit No. 16 as the substance he saw in the plastic bag.

¶ 38 4. Quantity and value of substances

¶ 39 Forensic scientist Katherine Frost Klimek is employed by the Illinois State Police's

Division of Forensic Services. She identified People's Exhibits Nos. 2, 14, 15, and 16 as

narcotics evidence bags she received for testing on July 30, 2009 from drug chemistry evidence

technician Allen Calendo. She testified that she took physical custody of this evidence,

confirmed that the bags were heat sealed and that the information on the bags matched the

attached paperwork, and locked the bags in a drawer in her workstation until she began her

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analysis on August 3, 2009. Ms. Frost described her analysis in detail: she wrote a detailed

description of each sample, weighed it, and performed two preliminary color tests and two gas

chromatography-mass spectrometry tests to identify compounds. She testified that the tests she

performed are generally accepted in the scientific community for analyzing the presence of

cocaine. Ms. Frost determined that the samples all tested positive for cocaine. The weight of the

samples collected from the path of the defendant's vehicle were as follows: People's Exhibit No.

2 (1.006 grams); People's Exhibit No. 14 (3.135 grams); People's Exhibit No. 15 (0.311 grams).

The sample collected from inside the vehicle (People's Exhibit No. 16) was over 25 grams. On

cross-examination, Ms. Frost confirmed that People's Exhibit No. 2 did not contain a rubber

glove when she took custody of it.

¶ 40 Officer Brian Luce, of the Chicago police department's Bureau of Organized Crime,

Narcotics, testified that he has participated in hundreds of narcotics arrests and is familiar with

how cocaine is packaged for street level sales. He explained that cocaine is typically sold on the

street in the amount of 0.1 grams for $10, i.e., a "hit," "dime bag," or "rock" of cocaine. He

further testified that a serious user of crack cocaine might, on average, use five rocks in a single

day, or a total of 0.5 grams. Officer Luce testified that, based on his experience and training,

People's Exhibits Nos. 2, 14, 15, and 16, taken together, comprised a total of 297 hits, with an

estimated street value of $2,970, an amount he believed was inconsistent with personal use.

¶ 41 G. Motion for Directed Verdict, Verdict, and Posttrial Motion

¶ 42 At the close of the State's case, the circuit court denied defendant's motion for a directed

verdict. On March 20, 2013, the jury found defendant guilty of possession with intent to deliver

15 grams or more but less than 100 grams of a substance containing cocaine. Defendant moved

for a judgment of acquittal or a new trial, claiming the same errors appealed from here. The

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circuit court heard argument and denied the motion in its entirety, noting that, had it presided

over the hearing on the motion to suppress, it "would have concluded that there was no stop, let

alone a Terry stop," as the defendant "was never stopped until he drove into the station at the

Third District *** committing numerous traffic offenses which by themselves would have

justified the police arresting [him]." The circuit court concluded both that the voir dire conducted

in the case was proper and that "the court's refusal to ask the questions requested by [defense

counsel] was appropriate." It further held the statements made in the police call-out tape were

properly admitted as excited utterances and present sense impressions, an adequate chain of

custody for narcotics evidence was established, and "the evidence resoundingly proved

[defendant's] guilt beyond a reasonable doubt."

¶ 43 JURISDICTION

¶ 44 The circuit court sentenced defendant on May 21, 2013 and denied his motion for

reconsideration of that sentence on July 31, 2013. Defendant timely filed his notice of appeal on

August 20, 2013. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the

Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a

final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S.

Ct. Rs. 603, 606 (eff. Feb. 6, 2013).

¶ 45 ANALYSIS

¶ 46 On direct appeal, defendant urges this court to reverse both the circuit court's denial of

his motion to suppress and his conviction or, in the alternative, to vacate his conviction and

remand for a new trial. For the reasons that follow, we affirm the judgment of the circuit court.

¶ 47 A. Motion to Suppress

¶ 48 Defendant first contends the circuit court erred in denying his motion to quash arrest and

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suppress evidence because, at the time he fled from the police, they had neither reasonable

suspicion to detain him nor probable cause to arrest him. Defendant points out that the officers

arrived on the scene looking for a group of three men with rifles but instead found defendant

seated alone in his car in the alley behind a home owned by his family with nothing in his hands.

Although he disputes that his car was blocking the alley, defendant further contends that, even if

it was, the officers could not have reasonably inferred from this violation of a civil parking

ordinance that he was committing, about to commit, or had committed a criminal offense.

Finally, defendant argues that flight, by itself, does not give rise to reasonable suspicion.

¶ 49 In response, the State argues that defendant's claim of a fourth amendment violation

"rests on the false premise that there ever was a stop in the alley" when "[i]n fact, defendant fled

before police stopped him." According to the State, "defendant was not seized until the police

arrested him in the parking lot of the police station," by which time he had committed numerous

traffic violations and tossed suspected cocaine from his vehicle. Even if the officers approaching

defendant in the alley constituted a stop, the State alternatively argues that probable cause

existed where defendant had no front license plate and was obstructing the alley.

¶ 50 A circuit court's ruling on a motion to suppress evidence is subject to a two-prong

standard of review. People v. Johnson, 237 Ill. 2d 81, 88 (2010) (citing Ornelas v. United States,

517 U.S. 690, 699 (1996)). We afford deference to a circuit court's findings of fact, disregarding

those findings only where they are against the manifest weight of the evidence. Id. We review de

novo, however, a circuit court's ultimate legal ruling as to whether suppression is warranted. Id.

at 88-89. We may consider both evidence presented at the suppression hearing and at defendant's

trial. People v. Almond, 2015 IL 113817, ¶ 55.

¶ 51 Both the United States Constitution and the Illinois Constitution protect individuals from

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unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. Not

every encounter between a police officer and a private citizen, however, involves a seizure or

restraint of liberty implicating the fourth amendment. People v. Luedemann, 222 Ill. 2d 530, 544

(2006). A person is seized " 'only when, by means of physical force or a show of authority, his

freedom of movement is restrained,' " i.e., if "considering the totality of the circumstances, a

reasonable person would believe he is not free to leave." Almond, 2015 IL 113817, ¶ 57 (quoting

United States v. Mendenhall, 446 U.S. 544, 553 (1980)).

¶ 52 In Terry v. Ohio, the Supreme Court held that, even in the absence of probable cause

sufficient for an arrest, a police officer may stop and question an individual where the officer

"observes unusual conduct which leads him reasonably to conclude in light of his experience that

criminal activity may be afoot." 392 U.S. 1, 30 (1968). In Illinois, this principle is codified in our

Code of Criminal Procedure of 1963. 725 ILCS 5/107-14 (West 2008). An officer "must have a

reasonable, articulable suspicion that a person has committed or is about to commit a crime, to

justify stopping that person." People v. Kipfer, 356 Ill. App. 3d 132, 137 (2005) (citing Terry,

392 U.S. at 22). Our supreme court has elaborated on this requirement of reasonable suspicion,

noting that "[t]he facts should not be viewed with analytical hindsight, but instead should be

considered from the perspective of a reasonable officer at the time that the situation confronted

him or her." People v. Thomas, 198 Ill. 2d 103, 110 (2001) (Thomas II). "Viewed as a whole, the

situation confronting the police officer must be so far from the ordinary that any competent

officer would be expected to act quickly. The facts supporting the officer's suspicions need not

meet probable cause requirements, but they must justify more than a mere hunch." Id.

¶ 53 We first consider if and when a seizure occurred. Defendant contends that, in concluding

that no stop occurred until the car chase ended, the circuit court missed the "initial violation" of

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his rights when officers approached him in the alley. We cannot agree. Defendant was not

"seized" when the officers merely exited their vehicle and approached him in the alley to conduct

an investigative interview. In so doing, the officers applied no physical force, made no show of

authority, and did not restrain defendant's liberty in any way. As the State notes, the officers had

not yet activated their emergency lights and defendant had the opportunity to leave the scene if

he did not wish to speak with them. Of course, when defendant afforded himself of that

opportunity, Officer Szubski yelled out for him to stop and the officers gave chase, activating

their lights and sirens well before defendant committed any moving violations or was seen

disposing of suspected narcotics from the window of his vehicle. This was a show of authority. It

is well established, however, that " '[a] person must submit to a show of authority before that

show of authority can constitute a seizure.' " (Emphasis in original and emphasis omitted.) Id. at

112 (quoting People v. Thomas, 315 Ill. App. 3d 849, 857 (2000) (Thomas I)); see also

California v. Hodari D., 499 U.S. 621, 622-23, 629 (1991) (holding that, where defendant fled

on foot from approaching officers in a high-crime area and, as he ran, discarded what was later

determined to be a rock of crack cocaine, seizure had not yet occurred and reasonable suspicion

was not required). We therefore examine the officers' basis for seizing defendant when they

actually did so (Thomas II, 198 Ill. 2d at 113), i.e., when defendant submitted to the officers'

show of force and was taken into custody at the Third District police station. The testimony

presented at trial overwhelmingly demonstrated that, by that point, defendant had committed

numerous traffic violations that alone justified the officers detaining him.

¶ 54 Even had defendant submitted sooner, we find that his headlong flight from the officers "

'gave rise to an articulable suspicion that criminal activity was afoot.' " Id. at 114 (quoting

Thomas I, 315 Ill. App. 3d at 858). In People v. Thomas, the arresting officer observed the

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defendant—whom he had previously arrested for drug offenses and whom he had heard was

delivering drugs in the area by bicycle—riding his bike at night and holding a police radio

scanner. Id. at 106. Without instructing the defendant to stop or activating his emergency lights,

the officer approached the defendant to conduct a field interview, at which point the defendant

"abruptly turned into an alleyway and departed the area at an accelerated pace." Id. Another

officer who witnessed the defendant's evasion activated his emergency lights and gave chase.

Rather than stopping, the defendant abandoned his bicycle and continued to flee on foot. Id. at

107. Our supreme court concluded that, when the officer first approached, he in fact wanted to

detain and interrogate the defendant and was prepared to do so "on a suspicion grounded in

circumstances that fell short of warranting a stop." Id. at 110. Had the defendant submitted to the

show of authority then and there, the stop would have been unjustified. Id. at 112. Instead, he

engaged in "headlong flight," what the appellate court described as "a consummate act of

evasion." Thomas I, 315 Ill. App. 3d at 858-59. Thus, by the time the officer succeeded in seizing

the defendant, his "ungrounded suspicion had ripened into suspicion that fully warranted an

investigatory stop." (Internal quotation marks omitted.) Thomas II, 198 Ill. 2d at 113.

¶ 55 Defendant acknowledges that unprovoked flight can be a basis for reasonable suspicion

(citing Illinois v. Wardlow, 528 U.S. 119, 125 (2000)), but contends that his flight in this case

was provoked, characterizing it as "the response of a man who had not done anything wrong and

feared engaging with police officers in an alley where he was alone and out of sight of any other

person." We are not unsympathetic with this rationale. Here, however, defendant rapidly

reversed out of the alley and engaged officers in a car chase during which he sped, drove the

wrong way down one-way streets, disobeyed traffic signals, drove across an abandoned lot, and

at one point onto a sidewalk. This was not a proportional reaction to any perceived threat

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associated with two officers on foot approaching defendant seated in the driver seat of his

vehicle. Certainly a person may refuse to cooperate with officers and go about one's business.

See People v. Kipfer, 356 Ill. App. 3d 132, 139-40 (2005) (finding that defendant's mere act of

ignoring and walking away from an officer attempting to question him did not rise to the level of

unprovoked flight); People v. Scott, 277 Ill. App. 3d 579, 584-85 (1996) (holding that, without

more, defendant's act of making a legal turn before reaching a roadside checkpoint did not

support a reasonable suspicion of criminal activity). However, "[f]light, by its very nature, is not

'going about one's business'; in fact it is just the opposite." Wardlaw, 528 U.S. at 125. As in

People v. Thomas, "[t]he defendant's reaction was in no way ambiguous. There was nothing to

suggest that [he] was merely exercising the right to continue on his way or to cause confusion

between the exercise of that right and a pure act of evasion." Thomas I, 315 Ill. App. 3d at 859;

see also Thomas II, 198 Ill. 2d at 114 (citing with approval appellate court's analysis).

¶ 56 Because we find no seizure occurred until defendant was taken into custody, we need not

consider whether either the fact that defendant's car was allegedly blocking the alley or the fact

that it was missing a front license plate would have justified the officers detaining defendant at

some earlier time. Where defendant engaged in headlong flight from officers attempting to

question him, committed numerous traffic violations before being taken into custody, and was

seen disposing of suspected controlled substances from the window of his vehicle, we conclude

that the arresting officers had probable cause to arrest him. Accordingly, the circuit court did not

err in denying defendant's motion to quash arrest and suppress evidence.

¶ 57 B. Voir Dire

¶ 58 Defendant next contends the circuit court erred in refusing to allow his counsel to pose

certain questions during voir dire designed to identify jurors who may have been biased against

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him due to his race or involvement with controlled substances. Specifically, defendant argues the

potential jurors should have been asked the following questions:

"(5) Do you have any close friends, family members, or

colleagues who are African-American?

(7) Do you, or does anyone you know, have a problem

with substance abuse or an addiction of any kind?

(8) What is your opinion about the use or sale of

controlled substances?

(9) What is your closest relationship with a person of

African-American descent?" 4

¶ 59 Due process requires that, where a jury trial is provided, "the jury must stand impartial

and indifferent." Morgan v. Illinois, 504 U.S. 719, 727 (1992). "The purpose of voir dire is to

ascertain sufficient information about prospective jurors' beliefs and opinions so as to allow

removal of those members of the venire whose minds are so closed by bias and prejudice that

they cannot apply the law as instructed in accordance with their oath." People v. Cloutier, 156

Ill. 2d 483, 495-96 (1993). Illinois Supreme Court Rule 431(a) (eff. July 1, 2012) requires a

circuit court to question potential jurors regarding their qualifications to serve in the case at trial.

The court may permit the parties to submit additional questions to it for further inquiry if

appropriate, and "shall permit the parties to supplement the examination by such direct inquiry as

the court deems proper for a reasonable period of time depending upon the length of examination

by the court, the complexity of the case, and the nature of the charges." Id. Within this

framework, the manner and scope of voir dire employed in a given case is at the discretion of the

4 Although none is cited, the numbering, repeated here as it is found in defendant's brief, indicates that these questions may have been excerpted from a longer list. 20 1-13-2785

circuit court. Cloutier, 156 Ill. 2d at 495. "[T]he test for evaluating the court's exercise of

discretion is whether the means used to test impartiality have created a reasonable assurance that

prejudice would be discovered if present." People v. Peeples, 155 Ill. 2d 422, 459 (1993).

¶ 60 The record in this case indicates that, 5 after questioning the potential jurors, the circuit

court provided counsel for both sides the opportunity to ask their own questions. Defense

counsel asked the first venire panel a handful of questions but declined to ask any of the second

panel. Notably, she did not ask the four questions at issue here, nor any other questions designed

to identify potential bias based on race or the use of controlled substances. Although defendant

states in his brief that the questions were submitted to and rejected by the circuit court, the only

indication of this in the record is a brief statement made by the circuit court when it denied

defendant's motion for a new trial ("And I believe that the voir dire by the court was proper in

this case, and I believe that the court's refusal to ask the questions requested by [defense counsel]

was appropriate."). As the appellant, it is defendant's burden to present a sufficiently complete

record of the trial proceedings to support a claim of error; in the absence of such a record, we

must presume that the circuit court's ruling was properly supported by the evidence and in

conformity with the law. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-93 (1984). We therefore

conclude the circuit court did not err in refusing to ask potential jurors the proposed questions.

¶ 61 Even absent such a presumption, we are not persuaded that the circuit court was required

to question the venire regarding race- or drug use-related bias. Defendant first argues that

5 Citing Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013), the State urges us to find that defendant has forfeited this issue by failing to identify where in the record his counsel submitted the proposed questions to the circuit court. Where the record is short and the issue is a simple one, however, we may choose to address the issue despite a party's failure to provide appropriate citations to the record. People v. Johnson, 192 Ill. 2d 202, 206 (2000). In any event, and as discussed below, we view this not as a failure to cite the record, but as a failure to provide a complete record in the first instance.

21 1-13-2785

questions regarding racial prejudice should have been asked because defendant is African-

American, the neighborhood in which he lives and in which the car chase took place is

predominantly African-American, officers Petrulis and Shrake and their experts are white, and

most of the potential jurors were not African-American, such that they were "not likely to be

familiar with the area in which Mr. Abram live[d] or the way police interact with African-

American men." Even assuming these facts to be true, we do not agree that, without more, they

required the circuit court to question potential jurors regarding the nature and extent of their

personal relationships with African-Americans.

¶ 62 It is well-established that " '[t]here is no constitutional presumption of juror bias for or

against members of any particular racial or ethnic groups.' " Peeples, 155 Ill. 2d at 460 (quoting

Rosales-Lopez v. United States, 451 U.S. 182, 190 (1981)). A circuit court is therefore

constitutionally required to question potential jurors specifically regarding racial prejudice only

"if 'special circumstances' exist that suggest a constitutionally significant likelihood that racial

prejudice might infect a defendant's trial," i.e., where "racial issues are 'inextricably bound up

with the conduct of the trial.' " Id. at 459-60 (quoting Ristaino v. Ross, 424 U.S. 589, 596-97

(1976)). The mere fact that the defendant is African-American and some of the officers are white

does not give rise to the required "special circumstances." Cf. People v. Diaz, 123 Ill. App. 3d

239, 243 (1984) (where "[t]he only issue of race or ethnic origin was in the confrontation

between white police officers and the defendant who [wa]s Mexican," the circuit court's refusal

to specifically question the venire panel regarding potential racial bias did not give rise to a

constitutional claim); Peeples, 155 Ill. 2d at 460 (noting that "[t]he sole fact that the defendant is

black and the victim is white does not constitute a special circumstance of constitutional

proportions") (internal quotation marks omitted (quoting Turner v. Murray, 476 U.S. 28, 33

22 1-13-2785

(1986))). Here, the issue of race was "tangential to the proceedings" and there were "no racial

overtones in the basic facts of the case," such that asking the jury questions designed to identify

racial bias may well have improperly "inject[ed] considerations of race into a case where the

issue was absent." People v. Johnson, 408 Ill. App. 3d 157, 167-69 (2010).

¶ 63 Defendant also argues that potential jurors should have been asked questions to discover

bias against drug use or abuse where he was accused of possessing and selling drugs. The cases

relied on by defendant, involving questions meant to elicit potential bias against members of

street gangs or drunk drivers, are distinguishable. For example, in People v. Strain, 194 Ill. 2d

467, 477 (2000), our supreme court held that a defendant must be afforded an opportunity to

question prospective jurors concerning gang bias in cases where gang membership and gang-

related activity are an integral part of the trial. This court has held, however, that "the reasoning

in Strain is limited to exposing possible gang bias," and has specifically declined to extend its

holding to cases involving possible bias against drug dealers. People v. Dixon, 382 Ill. App. 3d

233, 245 (2008) (citing People v. Morales, 329 Ill. App. 3d 97, 113-14 (2002), rev'd on other

grounds, 209 Ill. 2d 340 (2004)). We are not inclined to do otherwise now. Drug use itself, as

opposed to the illegal act of possessing a controlled substance, was not an integral part of this

case as gang membership was in Strain, where it was the motive for the crime and "gang

information permeated the testimony of almost every witness at trial." Strain, 194 Ill. 2d at 473.

¶ 64 People v. Lanter, 230 Ill. App. 3d 72, 76 (1992), where the reviewing court held defense

counsel was improperly precluded from discovering potential bias concerning drugs and alcohol,

has likewise been confined to cases in which, unlike here, a defendant cites his own drug or

alcohol abuse and addiction as an affirmative defense in the case. See Dixon, 382 Ill. App. 3d at

244. We similarly find Village of Plainfield v. Nowicki, 367 Ill. App. 3d 522 (2006)

23 1-13-2785

distinguishable. The defendant in that case was arrested and charged with driving under the

influence and improper lane usage. Id. at 523. The reviewing court held that "[w]hen intoxication

is a major issue in a case, it is reversible error for the court not to question prospective jurors

regarding their opinions toward alcohol." (Emphasis added.) Id. at 524. In this case, although

defendant was charged with possession with intent to deliver, drug use itself was not a "major

issue" at trial. It was never alleged, nor was any evidence presented, that defendant himself was a

drug user or was under the influence of drugs at any time relevant to the events giving rise to his

arrest. Rather, the evidence concentrated on the car chase that occurred and defendant's alleged

disposal of an illegal substance during that chase. Accordingly, we find the circumstances

presented here distinguishable from those in Nowicki.

¶ 65 We are consequently not persuaded that the circuit court abused its discretion by denying

defendant's request to probe potential jurors for race- or drug-related bias. The bare fact that

defendant was an African-American charged with a drug-related offense was not enough to

"effectively clos[e] the minds of jurors to the evidence such 'that they [could not] apply the law

as instructed in accordance with their oath.' " (Internal quotation marks omitted.) Dixon, 382 Ill.

App. 3d at 245 (quoting Strain, 194 Ill. 2d at 476). Absent any indication that "special

circumstances" would cause race to infect the trial or that drug use would be a "major issue," the

circuit court did not abuse its discretion in rejecting the proposed questions.

¶ 66 C. Admissibility of OEM Audio Recording

¶ 67 Defendant further contends that the circuit court erred in permitting the introduction of

hearsay statements made in the police "call out" tape from July 28, 2009, i.e., the audio recording

of officers pursuing defendant and recovering the narcotics allegedly ejected from the vehicle he

was driving. " 'Hearsay' is a statement, other than one made by the declarant while testifying at

24 1-13-2785

the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ill. R. Evid.

801(c) (eff. Jan. 1, 2011). Hearsay is generally not admissible unless it falls within a recognized

exception. People v. Cloutier, 178 Ill. 2d 141, 154 (1997). It is undisputed that the State sought

to admit the recording at issue here for the truth of the statements contained in it. The only

question on appeal, then, is whether the circuit court abused its discretion in ruling that the

statements fall within recognized exceptions to the rule against hearsay. The State argues the

recording was properly admitted under both the present sense impression and excited utterance

exceptions.

¶ 68 The admission of evidence is within the sound discretion of the circuit court. We only

reverse a circuit court's ruling regarding the admissibility of evidence where there is "a clear

showing of abuse of that discretion." People v. Ward, 101 Ill. 2d 443, 455-56 (1984). "An abuse

of discretion will be found only where the circuit court's decision is arbitrary, fanciful, or

unreasonable or where no reasonable person would take the circuit court's view." People v.

Ursery, 364 Ill. App. 3d 680, 686 (2006).

¶ 69 We first consider whether the statements made by the officers in the call-out tape were

admissible as present sense impressions. Where the exception is recognized, a hearsay statement

may nevertheless be admissible pursuant to the present sense impression exception if: (1) it

describes or explains the event perceived; (2) the declarant perceived the event so described, and

(3) the statement was substantially contemporaneous with the event in question. Estate of Parks

v. O'Young, 289 Ill. App. 3d 976, 982 (1997). Although this is an established exception under the

Federal Rules of Evidence, Illinois courts have traditionally not recognized it. Id. (citing Fed. R.

Evid. 803(1)); see also People v. Smith, 127 Ill. App. 3d 622, 627 (1984) ("There is no exception

to the hearsay rule which allows admission of a declaration of a witness to the event as to what

25 1-13-2785

he saw happen." (Internal quotation marks omitted.)). Since 2011, furthermore, the Illinois Rules

of Evidence have provided that hearsay is inadmissible except where specifically provided by

rule or statute. Ill. R. Evid. 802 (eff. Jan. 1, 2011). Notably, no provision is made for a present

sense impression exception. See Ill. R. Evid. 803(1) (eff. Jan. 1, 2011).

¶ 70 At the State's urging, the circuit court relied on dicta in People v. Alsup, 373 Ill. App. 3d

745 (2007), a Fifth District case in which recorded statements of officers broadcast on an

emergency radio network during a car chase were admitted into evidence as business records.

The court in Alsup concluded the recordings were alternatively admissible under the present

sense impression and excited utterance exceptions. Id. at 758-59. It recited the elements of the

former as they are set out in the Federal Rules of Evidence and relied on People v. Stack, 311 Ill.

App. 3d 162 (1999) for the proposition that the exception is a recognized one. Alsup, 373 Ill.

App. 3d at 757. In Stack, however, this court noted that "the present sense impression exception

has not been adopted in Illinois" and determined that the defendant "ha[d] not presented a

compelling argument for th[e] court to adopt [it] as a new exception to the rule of hearsay in

Illinois." (Emphasis added.) Stack, 311 App. 3d at 176. Where the rules of evidence have since

been codified, we do not find it appropriate to recognize a new hearsay exception, even were we

inclined to do so. Because there is no recognized exception to the rule against hearsay in Illinois

for present sense impressions, we hold the police call-out tape in this case was not properly

admitted on this basis.

¶ 71 We next consider whether the statements qualified as excited utterances. A statement is

admissible as an excited utterance where it "relat[es] to a startling event or condition" and is

"made while the declarant was under the stress of excitement caused by the event or condition."

Ill. R. Evid. 803(2) (eff. Jan. 1, 2011). The theory underlying the exception is that the event is so

26 1-13-2785

startling that it "temporarily stills the capacity for reflection, thus producing statements free of

conscious fabrication." People v. Harris, 134 Ill. App. 3d 705, 711 (1985). In determining

whether a statement qualifies as an excited utterance, "courts consider the totality of the

circumstances, including: the time elapsed between the event and the utterance, the nature of the

event, the declarant's mental and physical condition, and the presence of self-interest." People v.

Dobbey, 2011 IL App (1st) 091518 ¶ 44.

¶ 72 In the police recording at issue in this case, Officer Szubski is heard describing to police

dispatch the speed and location of defendant's vehicle, as well as his observation of defendant's

movements within the vehicle, to alert his fellow officers who were joining the chase. Officer

Szubski eventually reports that defendant has been apprehended and other officers are heard

describing their efforts to collect "proceeds" of the chase, i.e., the controlled substances they

contended were expelled from defendant's vehicle. There is no doubt that the statements made in

the recording relate to the officers' efforts to apprehend defendant and were made

contemporaneously with the events described. What we must consider on appeal is whether their

pursuit of him was a sufficiently startling or exciting event and whether their statements were

made while under the stress of excitement generated by that pursuit.

¶ 73 Defendant focuses on the fact that Officer Szubski is not a victim, but a trained law

enforcement officer, urging us to conclude that his recorded radio communications are

"essentially the same as a police report." The excited utterance exception, however, is not limited

to statements made by victims. People v. Sullivan, 366 Ill. App. 3d 770, 781 (2006). Nor are we

persuaded by defendant's argument that the exception should not apply where Officer Szubski

may have been motivated to make untrue statements that he knew would help justify his decision

to give chase or otherwise assist the State in its case against defendant. The exception presumes

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the existence of a motive to fabricate in many declarants. It is the power of a sudden, startling

event depriving the declarant of the opportunity to reflect, and thus to act on that motive, that

makes a statement presumptively trustworthy. This is where we concentrate our analysis.

¶ 74 The State contends the events in question were sufficiently startling because "defendant

was travelling at an extremely high rate of speed, driving the wrong way on multiple streets,

fleeing from police officers with their emergency lights activated, and throwing objects out of

the window, thereby endangering both officers and civilians." Defendant, on the other hand,

argues there is no sense of urgency in the recording and that officers were simply following an

unarmed individual whom no one had observed do anything illegal. Although the State describes

the pursuit of defendant's vehicle as a high-speed chase, we note that Officer Szubski's voice is

relatively calm throughout the recording, in contrast with cases where the declarant spoke in a

frantic voice or appeared scared, hysterical, or upset. See People v. Williams, 193 Ill. 2d 306, 355

(2000). Indeed, Officer Szubski testified that on July 28, 2009 he was part of the Target

Response Unit, was routinely sent to high crime areas in the city to interdict violent crimes

involving gangs, guns, and drugs, and had made over 600 arrests. He also testified, however, that

at the time of the pursuit, he and the other officers did not know for sure if another person was in

the vehicle or if the driver was armed. In the recording, Officer Szubski stated twice that he saw

the defendant reaching under his seat, but on cross examination he admitted that the call he and

his partner were responding to was for an individual with a rifle, a large weapon he agreed was

"easily seen if someone [wa]s carrying it." Officer Szubski also testified that police procedures

required him, before giving chase, to perform a balancing test, considering the need to apprehend

the offender versus the safety of citizens at large. The Traffic Pursuit Report describing the

incident furthermore indicated that traffic conditions were light that day and Officer Szubski's

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vehicle reached a top speed of only 45 miles per hour.

¶ 75 Simply because a situation may cause some level of excitement does not mean that it

rises to the level of a startling event capable of stilling the capacity for reflection. See, e.g.,

People v. Simon, 2011 IL App (1st) 091197, ¶ 82 (encountering someone with a gun in his

waistband was not a startling event); People v. Evans, 373 Ill. App. 3d 948, 965 (2007) (a

fistfight between individuals engaged in earlier altercations was not "the sort of dramatic,

startling event capable of generating an excited utterance"). Indeed, events that trigger the

excited utterance exception are often several orders of magnitude higher in terms of their

capacity to produce shock or alarm in a declarant than the events we are presented with here.

See, e.g., Williams, 193 Ill. 2d at 353 (witnessing the murder of one's sister and mother); People

v. Stiff, 391 Ill. App. 3d 494, 502 (2009) (being doused with gasoline and set on fire); People v.

Gacho, 122 Ill. 2d 221, 241 (1988) (suffering multiple gunshot wounds and being confined in a

trunk with a dead body). Although the officers' pursuit of defendant in this case may not have

had the same inherent capacity to startle as the events in other cases where Illinois courts have

held the exception applied, we cannot say that the circuit court abused its discretion when it ruled

that the circumstances present here were sufficiently startling to produce unreflective statements.

This is particularly true where the circuit court, after observing Officer Szubski's live testimony

concerning the car chase, had the opportunity to revisit its ruling when it denied defendant's

motion for a judgment of acquittal or new trial. Having witnessed that live testimony, the circuit

court was in a better position than this court to assess the likelihood that the officer was startled

by the events in question. We therefore decline to disturb its ruling.

¶ 76 Moreover, even if the statements were not properly admitted as excited utterances,

defendant suffered no undue prejudice from the playing of the police call-out tape, as no

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information was provided in the recording that was not also established through the live

testimony of Officer Szubski and the other officers. "Reversal for improperly admitted hearsay

evidence is not warranted where properly admitted evidence proves the same matter." People v.

Songer, 229 Ill. App. 3d 901, 906 (1992). Defense counsel herself admitted that the evidence was

cumulative in her argument opposing the State's motion in limine ("there is no need for this other

than to bolster the testimony of the officers because it doesn't provide anything that the officers

themselves are not going to provide"). Nor are we persuaded that the background sounds of

sirens would have unfairly confused or prejudiced the jury where the officers testified live and

were available for cross examination to clear up any confusion.

¶ 77 Accordingly, we hold that the circuit court did not abuse its discretion by admitting the

OEM recording pursuant to the excited utterance exception to the rule against hearsay. We

furthermore conclude that, even if the exception did not apply, there was no resulting prejudice

where the evidence provided in the recording was merely cumulative.

¶ 78 D. Chain of Custody

¶ 79 Defendant additionally argues that the State failed to take reasonable protective measures

to ensure that the substances testing positive for cocaine in this case were the same substances

either collected from defendant's vehicle or expelled from the vehicle as defendant fled from

officers. In support of his argument, defendant identifies what he characterizes as "serious

contradictions" in the testimony provided by the officers who collected the evidence.

Specifically, defendant contends that officers Shrake and Petrulis provided differing accounts of

the retrieval of a substance found near 517 East 62nd Street, as did officers Watkins and

Normand with respect to the substance collected near 6400 South Martin Luther King Drive. The

State contends that defendant forfeited this issue by failing to object at trial. It alternatively

30 1-13-2785

argues that, on appeal, defendant misstates or ignores portions of the officers' testimony and

raises issues that are irrelevant to a chain of custody challenge.

¶ 80 Where a defendant is charged with a narcotics violation, the physical evidence often does

not have uniquely identifying characteristics, making it susceptible to tampering, contamination,

or exchange. People v. Woods, 214 Ill. 2d 455, 466-67 (2005). In such cases, "[t]he State bears

the burden to establish a custody chain that is sufficiently complete to make it improbable that

the evidence has been subject to tampering or accidental substitution." Id. at 467. The State must

show that "reasonable protective measures" were taken to ensure that the substance tested was

the substance recovered from the defendant. Id. Once this prima facie case is established, "the

burden then shifts to the defendant to produce evidence of actual tampering, alteration or

substitution." Id. at 468. The State need not exclude every possibility of tampering or

contamination; nor is every person in the chain required to testify. Id. at 467. " '[U]nless the

defendant shows actual evidence of tampering or substitution, deficiencies in the chain of

custody go to the weight, not admissibility, of the evidence.' " Id. at 468 (quoting People v.

Bynum, 257 Ill. App. 3d 502, 510 (1994)).

¶ 81 We first consider the State's argument that this issue is forfeited. "Ordinarily, a defendant

must both specifically object at trial and raise the specific issue again in a posttrial motion to

preserve any alleged error for review." Id. at 470. A timely and specific objection to a lack of

foundation is especially critical where it likely would have provided the State with a reasonable

opportunity to correct the deficiency. Bynum, 257 Ill. App. 3d at 514-15. To establish that

reasonable protective measures were taken, the State in this case presented the testimony of

officers Shrake, Petrulis, Watkins, and Szubski, the individuals who retrieved and inventoried the

narcotics evidence in question, as well as that of Ms. Frost, who took physical custody of the

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samples for testing. The State claims defendant failed to raise a chain of custody objection to any

of this evidence prior to his posttrial motion. This is incorrect. Defendant did seek to bar

admission of People's Exhibit No. 2, the substance retrieved by Officer Watkins at approximately

6400 South Martin Luther King Drive, shortly after Officer Watkins testified. Defendant

contended, as he does on appeal, that there was a break in the chain of custody where Officer

Watkins could not specifically remember what she did with the substance when she returned to

the squad car, other than that she kept it with her continuously before giving it to Officer Szubski

at the Third District police station. We agree that defendant failed to preserve his objection to the

chain of custody for the other samples by neglecting to raise those objections at trial.

¶ 82 With respect to People's Exhibit No. 2—and with respect to the other samples if

defendant had preserved objections to them—we conclude that the State established a prima

facie case that "reasonable protective measures" were taken to ensure that the substances tested

were the same substance recovered from the defendant. The discrepancies in the officers'

testimony that defendant relies on do not constitute evidence of actual tampering, alternation, or

substitution but instead bear only on the weight of the evidence. See People v. DeLuna, 334 Ill.

App. 3d 1, 22-24 (2002) (holding that minor discrepancies in officer's and forensic scientist's

descriptions of confiscated narcotics, e.g., whether a hole was poked in the evidence collection

bag, went only to the weight of the evidence). The circuit court did not err in admitting the

narcotics evidence in this case.

¶ 83 Furthermore, those discrepancies relate only to the substances collected at two of the

three locations along the route of defendant's vehicle. Notably, defendant makes no argument

that a proper chain of custody was not established for the bulk of the cocaine (People's Exhibit

No. 16), which was retrieved from the driver seat upon his removal from the vehicle. According

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to testimony presented by the State's forensic scientist, that sample alone weighed approximately

25 grams, an amount that, according to Officer Luce's testimony, represented approximately 250

hits or a street value of $2,500. Thus, even if defendant's chain of custody objections were made

and sustained at trial, it would have done little to undermine the substantial evidence presented in

support of the charges against him for possession with intent to deliver.

¶ 84 E. Reasonable Doubt

¶ 85 Defendant finally contends that the State failed to prove beyond a reasonable doubt that

he was in actual possession of the cocaine retrieved by officers and admitted as evidence in this

case. When reviewing the sufficiency of the evidence, we must determine whether, after viewing

it in the light most favorable to the State, a rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. People v. Campbell, 146 Ill. 2d 363, 374

(1992). "It is the responsibility of the trier of fact to determine the credibility of witnesses, and to

weigh their testimony, to resolve conflicts in the evidence, and to draw reasonable inferences

from the evidence." Williams, 193 Ill. 2d at 338. We "will not reverse a criminal conviction

unless the evidence is so unreasonable, improbable, or so unsatisfactory as to justify a reasonable

doubt of the defendant's guilt." Campbell, 146 Ill. 2d at 375.

¶ 86 "In order to convict an individual of unlawful possession of a controlled substance, the

State must prove that the defendant had knowledge of the presence of the controlled substance

and that he or she also had immediate and exclusive possession or control of the narcotics."

Woods, 214 Ill. 2d at 466. Possession may be actual or constructive. People v. Frieberg, 147 Ill.

2d 326, 361 (1992). "Actual possession is proved by testimony which shows defendant exercised

some form of dominion over the unlawful substance, such as trying to conceal it or throwing it

away." People v. Scott, 152 Ill. App. 3d 868, 871 (1987).

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¶ 87 In support of his argument that no rational trier of fact could have found him guilty

beyond a reasonable doubt, defendant makes dubious inferences from the facts presented at trial;

we find they do little to erode the strength of the State’s case. For example, defendant admits the

amount of cocaine found in the vehicle he was driving "was of a quantity that could be for

distribution," but argues that his decision to drive into the parking lot of a police station does not

support an inference that he possessed or intended to distribute cocaine. This ignores the

testimony at trial establishing that, at the time, officers either had him completely surrounded or

were rapidly closing in on him. In short, his was an act of surrender, not of innocent indifference.

Defendant additionally notes that he did not own the vehicle he was driving and, at the time the

drugs were removed from the driver seat of the vehicle, he was no longer in it, such that no

officer ever saw the bag of drugs in his actual possession. "Proof that a defendant had control

over the premises where the drugs were located,” however, “gives rise to an inference of

knowledge and possession of the drugs." People v. Givens, 237 Ill. 2d 311, 335 (2010). No one

else was in the vehicle when defendant was arrested and defendant did not argue that the drugs in

fact belonged to the vehicle's owner, Ms. Kimberly Pritchett, who lent him the vehicle.

¶ 88 With respect to the drugs collected along the vehicle’s path, we must also reject

defendant's argument that reasonable doubt exists where officers were not able to identify the

items at the precise moment they were ejected from the moving vehicle. The officers consistently

testified that they saw objects being thrown from the vehicle and that, in certain instances, they

were able to keep those objects in view, go to where they were, and retrieve them for testing and

identification. Defendant finally argues that the quantities of drugs found on the streets during

the chase were only user quantities and were found lying unpackaged on the street in a "high

narcotics trafficking" neighborhood. We find these facts inconsequential where defendant points

34 1-13-2785

to no evidence from which a trier of fact could conclude that unclaimed narcotics were likely to

be found lying about on the streets of that neighborhood. The officers testified at trial that they

never lost sight of the objects from the time they were ejected from defendant’s vehicle, it was

light outside, there was no other debris in the street and no one else in the area.

¶ 89 Accordingly, we agree with the State that evidence of defendant's actual possession of

narcotics in this case was substantial. The evidence clearly established that defendant was the

driver of the vehicle, items were ejected from the vehicle as it eluded police officers, officers

collected those substances without losing sight of them, an additional substance was in plain

view on the seat of the vehicle when defendant was taken into custody, and all of the collected

substances tested positive for cocaine. A rational jury could have found, based on this evidence,

that defendant was guilty of possession with intent to deliver a controlled substance.

¶ 90 CONCLUSION

¶ 91 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 92 Affirmed.