SIXTH DIVISION February 25, 2011
No. 1-08-3459
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 07 CR 15592 ) BOBBY FOUNTAIN, ) The Honorable ) John T. Doody, Jr., Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion. Justices McBride and R.E. Gordon concurred in the judgment and opinion.
OPINION
Following a guilty verdict by a jury, the defendant Bobby
Fountain contends the State failed to prove the weight element of
the charged offense beyond a reasonable doubt because the
forensic chemist did not expressly testify to having individually
tested each of the foil packets containing the suspected heroin
to meet the one-gram threshold. The defendant also argues that
the circuit court judge failed to comply with Supreme Court Rule
431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)) and improperly
assessed the DNA fee.
We affirm. The jury could have reasonably inferred from the
evidence that each foil packet was chemically tested to find the
defendant guilty beyond a reasonable doubt of possession with
intent to deliver 1.3 grams of heroin; the trial judge did not 1-08-3459
commit reversible error under Rule 431(b) when he asked
prospective jurors if they had "a problem with" or "disagree[d]
with" the rule's four principles of law; and we maintain our
previous rejection of the identical challenge to the DNA fee.
BACKGROUND
On June 26, 2007, the defendant was arrested and charged
with possession of at least 1 but less than 15 grams of a
substance containing heroin with intent to deliver (720 ILCS 570/401(c) (West 2008)), and a cocaine-related offense, the
conviction of which he does not challenge. At the defendant's
jury trial, the following material evidence to this appeal was
introduced.
Officer Keith Karczewski of the Chicago police department
testified that on June 26, 2007, he was conducting a narcotics
mission with his partners John Dolan and Thomas Harris. At 12:30
p.m., he was driving a covert van in the area of 4231 west
Madison in Chicago when he saw the defendant on the sidewalk
yelling "rocks, blows, rocks, blows." Based on his experience,
Officer Karczewski understood "rocks" to mean crack cocaine and
"blows" to mean heroin. Officer Karczewski parked the van on the
opposite side of the street across four lanes of traffic, and
observed the defendant for approximately 15 minutes. During his
surveillance, Officer Karczewski observed a similar event on
three separate occasions: a man would approach the defendant,
engage in a brief conversation, and exchange United States
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currency for a small item the defendant retrieved from a plastic
bag in his front right pocket. Because he believed the defendant
had engaged in narcotics transactions, Officer Karczewski
instructed Officers Dolan and Harris to approach the defendant.
Officer John Dolan testified that when he and Officer Harris
approached, the defendant volunteered that he "had a jab of blows
and a couple of rocks" in his right front pocket, which he was
selling "for a cat named Furley." Officer Dolan reached into the defendant's right front pocket and retrieved a large plastic bag.
Inside the large bag was a smaller bag holding nine foil packets
Officer Dolan believed to be heroin, as well as two smaller bags
Dolan believed to be crack cocaine. Officer Dolan also recovered
$180 from the defendant's right front pocket. Officer Dolan
testified that he maintained constant care and control over the
items until he transferred custody of the items to Officer
Karczewski at the police station.
Officer Karczewski inventoried the cocaine, heroin, and
currency under separate, unique inventory numbers. He placed
each inventoried item into a larger evidence bag, heat-sealed the
bag, and placed it into a safe until the bag was transported to
the crime lab.
Linda Rayford, a forensic chemist with the Illinois State
Police, duly qualified as an expert, testified she received the
heat-sealed evidence bag on July 3, 2007. She opened the
evidence bag and removed the smaller bag containing nine foil
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packets of suspected heroin. Chemist Rayford testified she
weighed the nine packets separately and determined the powder
weighed 1.3 grams. She then conducted a preliminary color test
and a confirmatory test, both of which indicated the presence of
heroin. Chemist Rayford opined the nine foil packets contained
1.3 grams of heroin.
The defendant testified that on June 26, 2007, he worked as
a temporary employee at Pennant's Bakery until 5 a.m., then walked home and took a nap. When he awoke, the defendant walked
to the Family Dollar store on the 4200 block of west Madison to
shop. He then walked to a nearby barbershop to get his hair cut,
but the shop was closed. As he waited for the shop to open, he
spoke to a man outside the shop. The defendant testified he
never exchanged items with anyone on the street, and never yelled
"rocks" or "blows." He also denied telling Officer Dolan that he
was selling drugs "for a cat named Furley."
The jury found the defendant guilty of possession with
intent to deliver at least 1 but less than 15 grams of a
substance containing heroin. The trial judge sentenced the
defendant to four years' imprisonment. The defendant was also
ordered to pay certain fines and fees, including a $200 DNA fee
pursuant to section 5-4-3 of the Unified Code of Corrections (730
ILCS 5/5-4-3 (West 2008)). This appeal followed.
ANALYSIS
The defendant initially contends reasonable doubt remains
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that he actually possessed 1.3 grams of heroin because the
forensic chemist was never questioned regarding the exact testing
procedures she followed. In the absence of explicit testimony
from the chemist that she actually tested each of the nine foil
packets of powder recovered from the defendant's pocket, he
contends his conviction must be reduced to possession of less
than one gram of heroin with intent to deliver, a Class 2 felony.
See 720 ILCS 570/401(d) (West 2008). Sufficiency of Evidence
When confronted with a challenge to the sufficiency of the
evidence, a reviewing court does not retry the defendant; rather,
it determines whether "any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt." (Internal quotation marks omitted.) (Emphasis in
original.) People v. Ross, 229 Ill. 2d 255, 272, 891 N.E.2d 865
(2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
This standard reflects that it is the province of the jury to
determine the credibility of witnesses, assign weight to their
testimony, and resolve conflicts in the evidence. Ross, 229 Ill.
2d at 272. To overturn a conviction, the evidence must be so
improbable or unsatisfactory that reasonable doubt of the
defendant's guilt remains. Ross, 229 Ill. 2d at 272. Reasonable
doubt exists as a matter of law when the State fails to prove an
essential element of the offense. "When a defendant is charged
with possession of a specific amount of an illegal drug with
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intent to deliver and there is a lesser included offense of
possession of a smaller amount, then the weight of the seized
drug is an essential element of the crime and must be proved
beyond a reasonable doubt." People v. Jones, 174 Ill. 2d 427,
428-29, 675 N.E.2d 99 (1996).
When suspected illegal drugs are seized in the form of
powder in separate packets, a sufficient number of the seized
packets must be tested to establish that the defendant possessed the requisite amount of the illegal drug to prove the weight
element beyond a reasonable doubt. Jones, 174 Ill. 2d at 429 ("a
portion from each container or sample must be tested in order to
determine the contents of each container or sample"); cf. People
v. Clinton, 397 Ill. App. 3d 215, 223, 922 N.E.2d 1118 (2009)
(chemist improperly "combined six packets of suspected heroin
before determining whether each of the packets did, in fact,
contain heroin" (emphasis added)). In other words, the trier of
fact may not infer beyond a reasonable doubt that the powdered
substance present in the weighed but untested packets is
identical to the substance of the tested packets because powder
is not homogenous. Jones, 174 Ill. 2d at 429 ("random testing is
permissible when the seized samples are sufficiently homogenous
so that one may infer beyond a reasonable doubt that the untested
samples contain the same substance as those that are conclusively
tested").
In Jones, the defendant was arrested while in possession of
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five plastic packets, each "containing a white rocky substance."
Jones, 174 Ill. 2d at 428, 430. The State's evidence established
that two of the five packets tested positive for cocaine; the
remaining three packets, however, were not tested. Jones, 174
Ill. 2d at 428. According to the chemist, the total weight of
all five packets was 1.4 grams, but the two packets actually
tested weighed only 0.59 grams. Jones, 174 Ill. 2d at 428. The
defendant was "convicted of possession with intent to deliver 1.4 grams of cocaine." Jones, 174 Ill. 2d at 428.
On appeal, our supreme court affirmed the appellate court's
judgment to reduce the defendant's conviction in line with the
weight of the substance actually tested. Jones, 174 Ill. 2d at
430. The supreme court held that no inference could be drawn
concerning the composition of the three untested packets. Jones,
174 Ill. 2d at 430. The court reasoned that "the five packets
containing loose substances cannot be equated with identically
marked and stamped tablets, pills, or capsules." Jones, 174 Ill.
2d at 430. Absent a chemical analysis, it is "pure conjecture"
that the contents of the three untested packets also contained
cocaine, which is insufficient to prove beyond a reasonable doubt
that defendant possessed at least one gram of the illegal drug.
Jones, 174 Ill. 2d at 430.
The defendant contends that we should reach the same outcome
as in Jones. He argues in his main brief: "it is impossible to
know if each packet contained heroin, and thus whether it was
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appropriately included in the total weight." As in Jones, the
defendant contends his conviction should be reduced to the lesser
included offense.
There are, however, substantial differences between this
case and Jones. Here, the chemist expressly testified that she
weighed each of the nine packets separately. "I made sure that
each was weighed separately." In contrast to Jones, we have no
testimony from chemist Rayford that she tested less than all nine foil packets, though the parties acknowledge that chemist
Rayford's testimony on direct examination, describing the
preliminary and confirmatory tests on the suspected heroin, is
ambiguous as to the number of packets actually tested:
"Q. Can you tell us what's a preliminary
test?
A. Preliminary tests are tests you do to
look for a certain substance.
Q. And did you do that in this case?
A. Yes.
Q. Did it result in any kind of finding?
A. Yes. The preliminary tests were
indicative of heroin.
* * *
Q. After you conducted this preliminary
test, you said that you did a confirming
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A. Yes. A confirmatory analysis.
Q. What was that?
A. The GC mass spect. The gas
chromatography mass spectrometry.
Q. Can you please explain that to the
ladies and gentlemen of the jury ***?
A. That's when you take a small amount
of the sample, you put it into a glass vial with a reagent in it and then you put it on
an instrument. And the instrument reads
what's in the vial and gives you a printout.
Q. And based on that, after running this
test, were you able to determine if there was
a unique substance in People's Exhibit 1?
A. It was heroin.
Q. Based on your education, your
background, on the test that you performed on
People's Exhibit 1, did you form an opinion
as to what the controlled substance was in
People's Exhibit 1?
A. Yes, I did.
Q. What was that opinion?
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A. Positive for heroin.
Q. And what was the amount?
A. 1.3 grams."
While chemist Rayford testified that "preliminary tests"
were performed, suggesting that such tests were performed on more
than one foil packet, at other times, she spoke in the singular:
she testified to having conducted "[a] confirmatory analysis."
To support their contrary positions, each party focuses on the first step chemist Rayford described to perform the chemical
analysis: "you take a small amount of the sample."
The defendant contends chemist Rayford's testimony that a
confirmatory test is conducted by taking "a small amount of the
sample" suggests that she tested only a random number of the nine
foil packets. He does not expressly assert that commingling
occurred. At the same time, based on the record before us, the
defendant cannot tell us the number of packets that were tested
at "random." He simply asserts the chemist tested too few.
The State on the other the hand contends that chemist
Rayford's testimony that she would have taken "a small amount of
the sample" to perform the preliminary and confirmatory tests
confirms that all nine packets were tested.
As each party acknowledges, chemist Rayford never explicitly
testified to the number of packets actually tested. Thus, the
dispositive question before us is whether the evidence permitted
the jury to infer beyond a reasonable doubt that the seized
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packets contained 1.3 grams of heroin or would such an inference
be based on "pure conjecture" under Jones. Stated differently,
in light of the evidence presented, did the jury act reasonably
in finding him guilty of possession with intent to deliver 1.3
grams of heroin. See Ross, 229 Ill. 2d at 272 ("because the
trier of fact accepted certain testimony or made certain
inferences based on the evidence does not guarantee the
reasonableness of its decision."). The record evidence in this case is unlike the evidence in
Jones, where the chemist expressly testified that he tested only
2 of the 5 seized packets. Nor is this case like Clinton, where
the chemist testified that he commingled the seized substances
before he conducted the chemical tests. Finally, this case is
unlike People v. Adair, No. 1-09-2840 (Ill. App. Dec. 10, 2010),
where defense counsel filed a motion in limine seeking to bar the
chemist from testifying to the weights of the controlled
substances in the seized pills because the testing procedure
commingled nonhomogenous pills. Adair, slip op. at 3.
In this case, defense counsel did not challenge the disputed
scientific evidence pretrial; nor does the defendant point to
record testimony of the chemist that established the legal
shortcomings of the scientific analysis. Rather, the defendant
claims the ambiguous testimony of chemist Rayford regarding the
number of packets she tested fails to prove the weight element
beyond a reasonable doubt. We understand the defendant to
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contend that the reasonable doubt standard compels a court of
review to view ambiguous testimony as necessarily favoring the
defense.
Under our adversarial criminal justice system, each party
must challenge testimony that might lead the trier of fact to
find in favor of the other side. See People v. Wheeler, 151 Ill.
2d 298, 310-11, 602 N.E.2d 826 (1992) ("We have elected to employ
an adversary system of criminal justice in which the parties contest all issues before a court of law.") (Internal quotation
marks omitted.) (quoting United States v. Nobles, 422 U.S. 225,
230-31 (1975), quoting United States v. Nixon, 418 U.S. 683, 709
(1974)). Under our system, we allow the jury to decide on the
inferences to be drawn from ambiguous testimony. See People v.
McDonald, 168 Ill. 2d 420, 447, 660 N.E.2d 832 (1995) (where
evidence is capable of producing conflicting inferences, "it is
best left to the trier of fact for proper resolution").
The general rule regarding review of a guilty verdict
reflects the deference accorded to the jury's assessment of the
evidence: "When reviewing a challenge to the sufficiency of the
evidence, this court considers *** the evidence in the light most
favorable to the State." People v. Wheeler, 226 Ill. 2d 92, 114,
871 N.E.2d 728 (2007). Thus, it falls to the defendant to
challenge ambiguous testimony during the course of the trial or
else risk the application of this rule on appeal.
The prosecution, too, faces the prospect of not meeting its
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burden if the evidence establishes that proper testing procedures
were not followed by the State chemist. See Jones, 174 Ill. 2d
at 430 (with the untested packets in its possession, the State
was in the best position to answer whether those packets
"contained cocaine or mere look-alike substances"); Adair, slip
op. at 17 (it was the State's responsibility to adduce evidence
consistent with its theory of guilt; "we decline the State's
invitation to speculate" in the absence of such evidence). To remind the State of the obvious, had the chemist been asked to
detail the testing procedure she followed regarding each of the
seized packets, this issue might not be before us.
These admonitions aside, established authority regarding
inferences guides our decision here. "An inference is a factual
conclusion that can rationally be drawn by considering other
facts. Thus, an inference is merely a deduction that the fact
finder may draw in its discretion, but is not required to draw as
a matter of law." People v. Funches, 212 Ill. 2d 334, 340, 818
N.E.2d 342 (2004). A "reviewing court must allow all reasonable
inferences from the record in favor of the prosecution." People
v. Cunningham, 212 Ill. 2d 274, 280, 818 N.E.2d 304 (2004).
However, "if only one conclusion may reasonably be drawn from the
record, a reviewing court must draw it even if it favors the
defendant." Cunningham, 212 Ill. 2d at 280. Thus, the rules
regarding inferences do not permit the defendant's assertion that
under the reasonable doubt standard we must draw from ambiguous
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testimony only the inference that favors the defendant.
Nor does the record before us support the defendant's claim
that chemist Rayford tested a random number of packets, whose
total weight was almost certainly less than a gram.1 Unlike the
testimony in Jones, the defendant's claim here that only a random
number of packets were tested amounts to conjecture.
Taking the evidence in the light most favorable to the
prosecution, which includes allowing all reasonable inferences from the record, the jury's verdict that the defendant was guilty
of possession with intent to deliver 1.3 grams of a substance
containing heroin was reasonable. Chemist Rayford explicitly
testified that she weighed each foil packet individually. We
will not presume the chemist took inconsistent approaches in
weighing the seized packets and in testing the seized packets for
a controlled substance. See People v. Miller, 218 Ill. App. 3d
668, 673, 578 N.E.2d 1065 (1991) ("[W]here the record is unclear,
we will not presume that an improper procedure was performed.").
The jury was free to infer from the testimony regarding the
weighing process that chemist Rayford followed the same approach
in performing her chemical analysis; that is, she tested each
foil packet individually. See McDonald, 168 Ill. 2d at 447 (it
1 If each packet contained approximately the same amount of
powder, or approximately .14 grams, at least 8 packets needed to
be tested to reach the one-gram threshold.
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is for the jury to determine which inference to draw from
ambiguous evidence).
Chemist Rayford also described the confirmatory test she
would have performed on the seized substance: "[Y]ou take a small
amount of the sample, you put it into a glass vial with a reagent
in it and then you put it on an instrument. *** [T]he
instrument reads what's in the vial." From this testimony, the
jury could have reasonably concluded that each seized packet constituted a "sample," as chemist Rayford used that term
(consistent with how that term has been used by our courts),
which meant she tested each sample. See Jones, 174 Ill. 2d at
429 ("a portion from each *** [seized] sample must be tested in
order to determine the contents of each *** sample").
In light of the deference owed to the jury's verdict,
especially when ambiguous testimony is before it, we reject the
defendant's contention that the State failed to prove the weight
element of the charged offense beyond a reasonable doubt. Absent
evidence in the record to the contrary, the jury could reasonably
infer beyond a reasonable doubt that each foil packet was tested
separately, which meant the defendant possessed with intent to
deliver 1.3 grams of heroin.
Voir Dire
The defendant next contends the circuit court failed to
comply with Rule 431(b) in questioning the venire, a claim we
would ordinarily review de novo. People v. Thompson, 238 Ill. 2d
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598, 606, 808 N.E.2d 10 (2010) (compliance with a supreme court
rule is reviewed de novo). However, the defendant neither
objected to the trial judge's voir dire nor claimed this as error
in his posttrial motion, thus forfeiting review of this claim.
People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988).
Yet, the defendant does not assert plain error to compel our
review. Thompson, 238 Ill. 2d at 611 ("When a defendant has
forfeited appellate review of an issue, the reviewing court will consider only plain error."). Rather, he asserts that because
Rule 431(b) imposes a sua sponte duty on the trial judge, no
objection is required to preserve the alleged error: "Thus,
requiring an objection would be contrary to the purpose of the
amendment [imposing a sua sponte duty on the trial judge.]"
Case law is universally to the contrary. Outside the
context of plain error, "[a]n unbroken line of precedent mandates
that a defendant must object to claimed errors at trial and raise
them in his posttrial motions. [Citation.] Otherwise, they are
procedurally defaulted or forfeited." People v. Martinez, 386
Ill. App. 3d 153, 163, 897 N.E.2d 879 (2008) (citing People v.
Banks, 161 Ill. 2d 119, 641 N.E.2d 331 (1994) and People v.
Naylor, 229 Ill. 2d 584, 893 N.E.2d 653 (2008)). Nonetheless,
while we do not adopt the defendant's novel position that Rule
431(b) makes a claim of plain error unnecessary, we address his
contention that the voir dire conducted by the trial judge was
reversible error to give guidance to the circuit court.
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Rule 431(b) requires the trial judge to ask each potential
juror "whether that juror understands and accepts" four essential
principles of law:
"(1) that the defendant is presumed innocent
of the charge(s) against him or her; (2) that
before a defendant can be convicted the State
must prove the defendant guilty beyond a
reasonable doubt; (3) that the defendant is not required to offer any evidence on his or
her own behalf; and (4) that the defendant's
failure to testify cannot be held against him
or her." Ill. S. Ct. R. 431(b) (eff. May 1,
2007).
In this case, Judge Doody explained each of the first three
principles to the jury venire and, after each explanation, asked
whether any juror had "a problem with" or "disagree[d] with" each
principle of law. Judge Doody then explained that the defendant
did not have to testify, and asked the venire if they would "hold
the fact that a Defendant may not testify at trial against that
Defendant?" No prospective juror expressed a disagreement with
any of the four principles of law.
In his main brief, the defendant explains the basis for his
claim of error: "The judge in this case failed to comply with
these obligations by failing to ask whether the jury both
understood and accepted the [Rule 431(b)] principles, instead
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asking whether anyone had a 'problem' or 'disagreed' with the
basic principles." In his reply brief, the defendant argues "the
failure to ensure that the jury understands and accepts the [Rule
431(b)] principles is a failure to ensure that the defendant
receives a fair and impartial jury."
The defendant does not explain, however, why the circuit
court's inquiry fell short of the rule's requirements, other than
to argue that the trial judge's failure to use the words "understand" and "accept" rendered the voir dire "ineffective for
the purpose of determining whether each juror understood and
accepted the [Rule 431(b)] principles." Nor does the defendant
explain the manner in which he was prejudiced by the trial
judge's plain talk. For his claim of reversible error, the
defendant relies solely on the possibility that his jury may not
have been "fair and impartial" in absence of literal compliance
with the language in Rule 431(b).
We find the defendant's concern over whether his jury was
fair and impartial misplaced. The defendant fails to consider
defense counsel's role in selecting the jury that was seated to
hear his case. If there was a problem with the judge's voir
dire, defense counsel was free to inquire directly of the venire
to ensure that only "fair and impartial" jurors were selected.
See People v. Brown, 388 Ill. App. 3d 1, 10, 903 N.E.2d 863
(2009) (no reason to forego the application of the forfeiture
rule when "the defendant [had] the opportunity to ferret out any
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bias among the remaining potential jurors through voir dire
questioning to ensure his right to a fair trial").
Suffice it to say, Judge Doody did not commit reversible
error in his questioning of the venire. See People v. Glasper,
234 Ill. 2d 173, 201, 917 N.E.2d 401 (2009) ("We reject the idea
that the trial court's failure to conduct Rule 431(b)(4)
questioning makes it inevitable that the jury was biased.").
That said, the supreme court recently ruled that Rule
431(b) must be strictly followed: "Rule 431(b) *** mandates a
specific question and response process. The trial court must ask
each potential juror whether he or she understands and accepts
each of the principles in the rule." Thompson, 238 Ill. 2d at
607. Thus, after Thompson, it is likely error, though not
reversible error under our analysis in this case, not to ask
prospective jurors to respond to separate questions whether he or
she "understands" and "accepts" each of the four principles.
Modification to the language in Rule 431(b) is discouraged, much
as modification of pattern jury instructions is discouraged. See People v. Bannister, 232 Ill. 2d 52, 87, 902 N.E.2d 571 (2008)
(State's modified instruction should not have been used "until
this court's Committee on Pattern Jury Instructions in Criminal
Cases formally revises this series of instructions").
DNA Fee
Finally, the defendant contends that Judge Doody's
imposition of the DNA fee must be vacated because he was assessed
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the same fee in an earlier conviction.
We recently rejected this precise claim in Adair:
"Because the fund into which the DNA analysis
fee is deposited is available to cover a
variety of costs, we cannot agree that
multiple fee assessments 'would serve no
purpose' ***.
The DNA fee was properly assessed against the defendant, even if his assertion
is correct that this is the second time he
has been charged this fee." Adair, slip op.
at 20 (quoting and declining to follow People
v. Evangelista, 393 Ill. App. 3d 395, 399,
912 N.E.2d 1242 (2009) (second DNA fee
vacated because once "a defendant has
submitted a DNA sample, requiring additional
samples would serve no purpose")).
Nothing in the defendant's challenge persuades us to
reconsider our position.
CONCLUSION
In light of the record evidence, the jury was reasonable in
finding the defendant guilty of possession with intent to deliver
1.3 grams of a substance containing heroin. In the absence of
direct evidence to the contrary, we will not presume the State
chemist failed to test each of the nine foil packets. No
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reversible error occurred in the voir dire of the prospective
jurors by asking whether they had "a problem with" or
"disagree[d] with" the four principles of law of Rule 431(b).
Nonetheless, the circuit court must strictly follow Rule 431(b)
to avoid a finding of trial court error. Finally, we reiterate
that a defendant may be properly assessed the DNA fee even if he
was assessed that fee in a previous conviction.
Affirmed.