People v. Coger

2019 IL App (1st) 163250

• Court: Appellate Court of Illinois
• Decided: April 29, 2019
• Docket: 1-16-3250
• Status: Unpublished

Opinion

2019 IL App (1st) 163250

FIRST DIVISION April 29, 2019

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

No. 1-16-3250

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 15 CR 19679 ) SHERRELL COGER, ) Honorable ) Mauricio Araujo, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion. Justices Griffin and Walker concurred in the judgment.

OPINION

¶1 Sherrell Coger was found guilty in a bench trial of one count of delivery of a substance

containing heroin and one count of delivery of a substance containing cocaine (720 ILCS

570/401(d)(i) (West 2014)). We reject Ms. Coger’s claim that the State failed to adequately show

a chain of custody for the narcotics. But we agree with Ms. Coger that because the cocaine and

heroin were blended into a single substance and the State presented no evidence that she had any

idea that the substance contained both illegal drugs, her two convictions violate the one-act, one-

crime rule.

¶2 I. BACKGROUND

¶3 Ms. Coger was charged by indictment with, in relevant part, two counts of delivery of a No. 1-16-3250

controlled substance based on her delivery of less than one gram of heroin (count III) and less

than one gram of cocaine (count IV). Because Ms. Coger does not challenge the overall

sufficiency of the evidence, we recite only those facts necessary to our disposition.

¶4 Chicago police officer Marshall Mason testified that, on November 15, 2015, at

approximately 10:52 a.m., he was working as an undercover buy officer with a team of officers

conducting a narcotics investigation. Officer Mason observed a woman in the area of the 2800

block of West Polk Street, later identified as Ms. Coger. Ms. Coger was wearing a black and teal

jacket, black pants, and a black baseball hat. Officer Mason approached Ms. Coger and asked “if

the blows were outside today.” Officer Mason understood “blows” as a street term for heroin.

Ms. Coger asked how many Officer Mason wanted and he asked for three. Ms. Coger walked

away and after several minutes, she returned and instructed Officer Mason to walk to a nearby

vacant lot. They walked to the lot together, and Ms. Coger gave Officer Mason three foil packets

in exchange for $30 in prerecorded police funds. Officer Mason then gave his team a nonverbal

indication that a positive narcotics transaction had occurred and returned to his undercover

vehicle. Ms. Coger was arrested approximately two hours later and identified by Officer Mason

as the person who sold him narcotics.

¶5 Officer Mason testified that he placed the narcotics he received from Ms. Coger into an

evidence bag he kept in his vehicle and kept the narcotics in his constant care, custody, and

control until he reached the police station. At the station, Officer Mason inventoried the narcotics

pursuant to Chicago Police Department procedures by filling out the information on the bag and

entering the information in “I-CLEAR” (Illinois Citizen and Law Enforcement Analysis and

Reporting System), which provided a unique inventory number (13467860) for the evidence. He

placed the inventory number on the bag, signed two places on the bag, and gave it to his sergeant

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to sign. The bag was then heat-sealed and placed in a vault.

¶6 Officer Mason identified State’s Exhibit 1 as the bag into which he placed the narcotics

he received from Ms. Coger. He testified that the narcotics were in the same or substantially

same condition as when he placed them in the bag. The only difference he noted was “[j]ust

whatever the State people did,” which was to “place[ ] them inside plastic bags and put some

type of numbers” on them.

¶7 On cross-examination, Officer Mason testified he did not weigh the narcotics prior to

placing them in the inventory bag. He acknowledged that when the weight of narcotics is

documented in police reports, it is an approximation based on previous transactions and a scale

used by the police department. Officer Mason explained that, prior to inventorying narcotics,

police obtain an estimated weight of the inventory. Officer Mason kept the narcotics in the three

separate foil packets when he inventoried them.

¶8 Forensic scientist Hasnain Hamayat testified he worked for the Illinois State Police

forensic sciences command. Mr. Hamayat was qualified as an expert in the field of forensic

chemistry and identified State’s Exhibit 1 as the evidence bag he received in this case. He could

identify the bag because it bore his “initials inside and outside and the date.” The bag was in the

same or substantially the same condition as when he last saw it. After Mr. Hamayat received the

sealed bag at the drug chemistry vault, the “first thing” he did was “check the content of the bag

versus the inventory sheet it came with.”

¶9 Mr. Hamayat testified that he weighed the three packages together and then subtracted

the package weight from the total weight to determine the weight of the substances. The

combined weight of the three items, without the packaging, was 0.949 of a gram. Following a

preliminary test and a confirmation test, Mr. Hamayat determined within a reasonable degree of

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scientific certainty that each of the three items tested positive for the presence of both cocaine

and heroin. He did not testify to the amount of heroin or cocaine in any of the packages.

¶ 10 The State rested and Ms. Coger did not present any evidence.

¶ 11 During closing arguments, defense counsel argued that there were “issues with the

chemist,” arguing that it was “questionable” that the items tested positive for both heroin and

cocaine and taking issue with the fact that it was not known how much of either substance was

present. Counsel contended that the State failed to prove “both substances” beyond a reasonable

doubt.

¶ 12 The court found Ms. Coger guilty of both delivery of heroin and delivery of cocaine. Ms.

Coger filed a motion for a new trial, arguing in part that “the Court erred in finding that

testimony from Forensic Scientist Hasnain Hamayat was sufficient to prove beyond a reasonable

doubt that the items recovered tested positive for both heroin and cocaine.” The court denied Ms.

Coger’s motion and sentenced her, as a Class X offender based on her background, to six years’

imprisonment for “delivery of heroin or an analog thereof.” Ms. Coger was also convicted of

“delivery of cocaine or an analog thereof,” but no additional sentence was imposed on that count.

¶ 13 II. JURISDICTION

¶ 14 Ms. Coger was sentenced on October 19, 2016, and timely filed her notice of appeal on

November 16, 2016. This court has jurisdiction pursuant to article VI, section 6, of the Illinois

Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6,

2013) and Rule 606 (eff. Dec. 11, 2014), governing appeals from final judgments of conviction

in criminal cases.

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¶ 15 III. ANALYSIS

¶ 16 A. Chain of Custody

¶ 17 On appeal, Ms. Coger first contends that the court erred by admitting the narcotics into

evidence because the State failed to lay a proper foundation for that evidence. Specifically, Ms.

Coger argues that the State did not present a sufficiently complete chain of custody establishing

that the items Ms. Coger delivered to Officer Mason were the same items tested by Mr.

Hamayat.

¶ 18 Ms. Coger acknowledges that she failed to preserve this issue because she did not object

to the chain of custody at trial but requests that we review it under the plain error doctrine. See

People v. McCarter, 385 Ill. App. 3d 919, 927 (2008) (generally, to preserve an error for appeal,

a defendant must both object at trial and raise the issue in a posttrial motion). Chain of custody

establishes a foundation for evidence as reliable and admissible. People v. Alsup, 241 Ill. 2d 266,

275 (2011). A claim that the State presented an incomplete chain of custody is a challenge to the

foundation of the evidence and is therefore subject to forfeiture. People v. Banks, 2016 IL App

(1st) 131009, ¶ 68 (citing People v. Woods, 214 Ill. 2d 455, 471 (2005)). Application of

forfeiture when a defendant did not object to the chain of custody is particularly appropriate

because this failure to object deprives the State of its opportunity to cure any deficiency in the

foundation. Id. ¶ 71 (citing Woods, 214 Ill. 2d at 470).

¶ 19 That said, in Woods, our supreme court explained that a defendant may raise a forfeited

chain of custody issue for the first time on appeal if the alleged error rises to the level of plain

error, such as “in those rare instances” where there is “a complete breakdown in the chain of

custody,” i.e., there was no link between the substance recovered by the police and the substance

tested. Woods, 214 Ill. 2d at 471-72. Here, we find no error, let alone a complete breakdown of

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the chain of custody.

¶ 20 Prior to introducing an object into evidence, the State “must lay an adequate foundation

either through its identification by witnesses or through a chain of possession.” (Internal

quotation marks omitted.) Id. at 466. The character of the object sought to be introduced into

evidence determines the appropriate method of establishing a foundation. Id. When an item has

readily identifiable and unique characteristics and its composition is not easily changed, the State

may lay an adequate foundation through testimony that the item sought to be admitted is the

same as the item recovered and is in substantially the same condition as when it was recovered.

Id. In cases involving controlled substances, by contrast, often the physical evidence is “not

readily identifiable or may be susceptible to tampering, contamination or exchange.” Id. at 466-

67. The State, therefore, has the burden of establishing a chain of custody as the foundation for

the admission of such evidence. Id. at 467. This requires the State to show that the police took

reasonable protective measures to ensure the substance recovered from the defendant was the

same substance tested by the forensic chemist and the custody chain was sufficiently complete to

make it improbable that the evidence was subject to tampering, contamination, or substitution.

Id. Once the State has established its prima facie case, the burden then shifts to the defendant to

show actual evidence of tampering, alteration, or substitution. Id. at 468.

¶ 21 Without such evidence from the defendant, it is not required that “every person in the

chain testify, nor must the State exclude every possibility of tampering or contamination.” Alsup,

241 Ill. 2d at 275. Moreover, even when there is a missing link in the chain, the evidence is

properly admitted “if there was testimony which sufficiently described the condition of the

evidence when delivered which matched the description of the evidence when examined.” Id.

Once the State establishes a prima facie case, and unless the defendant demonstrates actual

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evidence of tampering, deficiencies in the chain of custody go to the weight of the evidence and

not to its admissibility. Id. at 274-75.

¶ 22 Here, the State laid a sufficient foundation for the narcotics evidence. Both Officer

Mason and Mr. Hamayat identified the evidence bag and each established the bag was sealed

when either leaving or entering their respective care. Specifically, Officer Mason testified that

after receiving the suspected narcotics from Ms. Coger, he placed the foil packets in an evidence

bag in his vehicle and kept the items in his care, custody, and control until he reached the police

station. Once at the station, he inventoried the items pursuant to Chicago Police Department

procedures, which he outlined in detail. Such procedures included filling out the information on

the bag and entering the information in “I-CLEAR,” which provided a unique inventory number

(13467860) for the evidence. He placed the inventory number on the bag, signed two places on

the bag, and gave it to his sergeant to sign. The bag was then heat-sealed and placed in a vault.

Officer Mason identified the evidence bag containing the items at trial and stated it was in

substantially the same condition, except that the Illinois State Police lab placed the narcotics

inside plastic bags and numbered them.

¶ 23 Mr. Hamayat identified the evidence bag and noted that it was in the same or

substantially the same condition as the last time he saw it. He further noted the bag bore his

initials and date both inside and outside. He explained that he received the sealed bag from the

“drug chemistry vault” and the “first thing” he did was to “check the content of the bag versus

the inventory sheet it came with.” This supports a reasonable inference that the contents of the

bag and the substances logged on the inventory sheet matched and were therefore the same

items. Moreover, Mr. Hamayat’s testimony established that the substances he tested were the

same as those Officer Mason received from Ms. Coger. Mr. Hamayat repeatedly described the

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contents of the inventory as three distinct packets, which corresponded with Officer Mason’s

testimony regarding the number of packets he received from Ms. Coger during the transaction.

See, e.g., People v. Blankenship, 406 Ill. App. 3d 578, 588-89 (2010) (finding a “unique

identifier,” such as use of a police inventory number with matching descriptions of the evidence

recovered and the substance tested by a forensic chemist, is sufficient to establish a chain of

custody).

¶ 24 Although Mr. Hamayat did not recite the specific inventory number in his testimony, the

absence of testimony on the inventory number in this case is not the same as the mismatched

inventory numbers that concerned the court in Woods. Mr. Hamayat and Officer Mason both

identified the same evidence bag, State’s Exhibit 1, based on their own signatures on the bag.

Thus, even without any testimony about the specific inventory number, the State presented

evidence of a sufficiently complete chain of custody from the transaction between Ms. Coger and

Officer Mason through Mr. Hamayat’s testing.

¶ 25 Additionally, we reject Ms. Coger’s claim that the chain of custody evidence was suspect

because Officer Mason’s testimony regarding the weight of the substances was “almost 40

percent” less than the weight testified to by Mr. Hamayat. In her brief, Ms. Coger argues that

Officer Mason testified the substances weighed 0.6 of a gram, while Mr. Hamayat testified they

weighed 0.949 of a gram. This is simply not accurate. Officer Mason never testified to the

weight of the substances. Rather, on cross-examination, Officer Mason, without giving a specific

weight of the items in this case, testified that the police department documents an approximate

weight of recovered substances prior to inventorying them. The 0.6-gram approximation that Ms.

Coger references was obtained from a police report, which was not even presented as evidence at

trial and which was not purported by anyone to be an accurate weight of the substances

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recovered.

¶ 26 In short, this is simply not one of the “rare instances” described in Woods in which there

was a “complete breakdown” in the chain of custody that would permit Ms. Coger to overcome

her forfeiture of this issue. In fact, the evidence of a chain of custody was sufficient to establish a

foundation for the narcotics evidence entered into evidence at Ms. Coger’s trial.

¶ 27 B. One-Act, One-Crime

¶ 28 Ms. Coger also argues that her convictions for both delivery of heroin and delivery of

cocaine violate the one-act, one-crime rule, which prohibits multiple convictions arising out of

the same physical act. See People v. Almond, 2015 IL 113817, ¶ 47; People v. King, 66 Ill. 2d

551, 566 (1977). Ms. Coger again concedes that she failed to preserve this issue by objecting to it

at trial or including it in a timely filed posttrial motion. The State makes no forfeiture objection

to this argument, recognizing that we may review alleged one-act, one-crime violations under the

second prong of the plain error doctrine, as such violations affect the integrity of the judicial

process and can result in a surplus sentence. People v. Nunez, 236 Ill. 2d 488, 493 (2010); People

v. Price, 2011 IL App (4th) 100311, ¶ 25. A violation of the one-act, one-crime rule presents a

question of law that we review de novo. People v. Johnson, 237 Ill. 2d 81, 97 (2010).

¶ 29 To support her argument, Ms. Coger begins with People v. Manning, 71 Ill. 2d 132

(1978), in which our supreme court held that, absent a statutory provision indicating otherwise,

the simultaneous possession of multiple types of controlled substances constitutes a single act

supporting only one conviction. Id. at 137. In Manning, the defendant was “found to be in

possession of an assortment of pharmaceutical pills and capsules, later determined to include

343.8 grams of amphetamines and 240.3 grams of barbiturates.” Id. at 133. Thus, although the

controlled substances were in separate pills, because they were all found together, our supreme

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court held that they all represented one act of “possession.” Id. at 135. The court found the

situation analogous to charging a thief with 4 different larcenies when he stole 4 horses at the

same time and from the same place or 12 larcenies when he stole 12 articles of clothing at once

from the same store. Id.

¶ 30 However, Manning was subsequently superseded by an amendment to the Illinois

Controlled Substances Act (Act), which now authorizes multiple convictions for the

simultaneous possession or sale of different controlled substances. See Pub. Act 90-593, § 25

(eff. June 19, 1998) (amending 720 ILCS 570/401, 402). The Act now includes the following

language: “A violation of this Act with respect to each of the controlled substances listed herein

constitutes a single and separate violation of this Act.” 720 ILCS 570/401, 402 (West 2014). In

People v. Bui, 381 Ill. App. 3d 397, 427 (2008), we explained that this amendment superseded

Manning by “expressly authoriz[ing] multiple convictions where a defendant simultaneously

possesses more than one type of controlled substance.”

¶ 31 In Bui, the defendant was found in possession of 4997 pink tablets, weighing 1143.7

grams, that each tested positive for the presence of two different controlled substances:

methylenedioxymethamphetamine (MDMA) and methamphetamine. Id. at 404. The defendant

was subsequently found guilty of both possession of 1500 or more tablets of MDMA with intent

to deliver and possession of 900 or more grams of methamphetamine with intent to deliver. Id.

On appeal, the defendant in Bui also argued a one-act, one-crime violation. Id. at 426. But noting

the amended Act’s authorization of multiple convictions for simultaneous possession, this court

upheld the defendant’s separate convictions. Id. at 427. Ms. Coger acknowledges that in Bui, this

court addressed and rejected the argument that she raises here but argues it was wrongly decided.

¶ 32 Ms. Coger offers several compelling reasons why we should not follow Bui or continue

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to allow the State to prosecute a single sale of a blended or compound substance as two separate

crimes.

¶ 33 First, this was not at all the issue in Manning, which was the fact pattern that the

legislature sought to address when it amended the Act. In Manning, the defendant

simultaneously possessed two different, completely separate controlled substances—he just

happened to possess them both at the same time. In Bui, and in Ms. Coger’s case, the defendant

possessed or delivered one controlled substance which was a blend or what Ms. Coger refers to

as a “compound” of two controlled substances.

¶ 34 Also, treating this blend or compound as two separate crimes does nothing to further the

purpose of the Act in terms of discouraging drug use and increasing severity based on the

amount of drugs a defendant puts into the marketplace. As Ms. Coger points out, the user of this

blend or compound could not separate the drug into two narcotics for separate use. Each of the

packets represented one, and only one, inseparable drug blend.

¶ 35 Third, the statute under which Ms. Coger was charged criminalizes the delivery of

specific amounts of a “substance containing” certain illegal drugs. 720 ILCS 570/401(d) (West

2014). Our supreme court has held that this language means that we include all ingredients in the

“substance” when we determine the weight of the drugs for sentencing purposes. People v.

McCarty, 223 Ill. 2d 109, 125 (2006). At the same time, the State asks us to separate out the

various ingredients discerned after testing and convict the defendant for multiple crimes based on

these component parts. Following this reasoning, we would be aggregating the ingredients in the

“substance” for purposes of weight but separating those ingredients when such separation can lay

the foundation for multiple crimes. This is an inconsistency that can only work to the detriment

of a criminal defendant.

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¶ 36 Finally, Ms. Coger’s convictions for two crimes reads the knowledge requirement out of

the statute. We have recognized that selling narcotics is not “an absolute liability offense,” and

the State must prove that the defendant knew that what he or she was selling was a controlled

substance. People v. Patel, 2013 IL App (4th) 121111, ¶ 33; People v. Chatha, 2015 IL App

(4th) 130652, ¶ 49. The State points out that we have also held that it is not necessary for the

State to prove that the defendant knew the particular drug involved so long as the State proves

that the defendant knew he or she was delivering a controlled substance. People v. James, 38 Ill.

App. 3d 594, 596-97 (1976).

¶ 37 Here, the State’s evidence was that Officer Mason requested “blows,” which he

understood to be a street term for heroin, so there can be no question that Ms. Coger had

knowledge that what she was selling was a controlled substance, even if she did not know the

precise composition of that substance. But there was no evidence that Ms. Coger knew that she

was in fact selling not one but two controlled substances. Thus, the knowledge requirement was

not met for the sale of two controlled substances.

¶ 38 For all of these reasons, we respectfully disagree with Bui, and we vacate Ms. Coger’s

conviction for the delivery of cocaine. Because no sentence was imposed on count IV, there is no

need to modify her sentence. However, we order that her mittimus be corrected to reflect only

one conviction in his case.

¶ 39 IV. CONCLUSION

¶ 40 For the foregoing reasons, we affirm Ms. Coger’s conviction for delivery of less than one

gram of heroin (count III), vacate her conviction for delivery of less than one gram of cocaine

(count IV), and order the mittimus be corrected to reflect only one conviction.

¶ 41 Affirmed in part and reversed in part; mittimus corrected.

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