People v. Miller

578 N.E.2d 1065, 218 Ill. App. 3d 668, 161 Ill. Dec. 419, 1991 Ill. App. LEXIS 1382
Appellate Court of Illinois·Decided August 16, 1991·No. 1-89-0500·Published·Cited by 13 cases

Opinion

JUSTICE McNULTY

delivered the opinion of the court:

After a jury trial, defendant Fernando Miller was convicted of possession of a controlled substance with intent to deliver more than 15 grams of cocaine, a Class X felony, and possession of a controlled substance with intent to deliver less than 10 grams of heroin, a Class 2 felony. He was sentenced on the Class X felony to a term of 16 years in the Illinois Department of Corrections.

Defendant contends on appeal that the State failed to prove beyond a reasonable doubt that the packets recovered from defendant contained over 15 grams of cocaine. For the following reasons we affirm.

On the evening of October 7, 1987, the tactical unit of the Chicago police department raided a second-floor apartment at 1416 East 69th Street, Chicago, Illinois. As some of the officers approached the building through the back alley, they noticed the defendant throwing clear plastic bottles out of the window. The officers used bolt cutters to gain entry into the apartment since the front and back doors were locked from the inside by burglar bars. Once inside, the officers discovered defendant and codefendant, Brian Jackson, but did not find the men to be in possession of drugs, money or the keys to the burglar bars. Defendant informed the officers that he and Jackson had been locked inside the apartment by a man named “Mike” who had offered to pay defendant and Jackson each $75 to sell drugs. Defendant told the officers that when they saw the squad cars, they became scared and threw the drugs out the window.

At trial, defendant testified that he was in the apartment to buy drugs, not to sell them, and that he had hidden the money he brought to buy drugs in his sock so that the police would not take it. He denied throwing drugs out of the window. Defendant further testified that he would steal and burglarize to get drugs, but would never sell drugs. Defendant admitted to being an addict, and that he had even used cocaine on the day of trial.

A stipulation was entered into as to the testimonies of the State’s two chemists, Phillip Somerville and Fumi Moka. It was first stipulated that Somerville analyzed and weighed 2 of the 18 sealed packets of brown and white powder contained in People’s exhibit number 1. It was stipulated by Somerville that “having removed the brown powder from these containers” he found that the brown powder contained in the two sealed packets weighed .08 grams and that the substance contained in the packets was heroin. It was also stipulated that Somer-ville tested 2 of the 18 packets of white powder in the 50/50 packs which tested negative for controlled substance.

The second stipulation concerned the chemical analysis procedures followed by chemist Fumi Moka regarding People’s exhibit number 2. It was stipulated that she was qualified as an expert in the area of analysis and identification of various controlled substances, specifically the substance cocaine. Furthermore, it was stipulated that Moka weighed the contents of 65 sealed paper packets of white powder contained in People’s exhibit number 2, “having removed the white powder from the containers,” and found the weight of the white powder in the 65 plastic sealed paper packets to be 13.721 grams. She further weighed the contents of eight tested bags, “having removed the white powder from the containers,” and found the weight of the white powder substance contained in these eight plastic sealed packets to be 1.42 grams. It was stipulated that Moka would testify that the total weight for the white powder was 15.141 grams. Furthermore, it was Moka’s expert opinion that the white powder substance in the eight packets and the additional 65 bags was a substance containing cocaine.

The jury found defendant guilty of the offense of possession with the intent to deliver 15 grams or more of cocaine and possession of a controlled substance with the intent to deliver 10 grams or less of heroin. Judgment was entered only as to the Class X felony, possession with the intent to deliver more than 15 grams of cocaine, and defendant was sentenced to 16 years in the Illinois Department of Corrections.

Defendant contends that the State failed to prove beyond a reasonable doubt defendant’s possession with intent to deliver more than 15 grams of cocaine when it combined the content of the packets prior to weighing and analyzing the substances found in the packets. The crux of defendant’s argument focuses on the testimony of chemist Moka. Defendant contends that chemist Moka removed the white substance from the packages and indiscriminately mingled the contents of the packages prior to weighing the substances and before determining whether each individual package contained cocaine. According to defendant this procedure raises reasonable doubt as to the true weight and amount of cocaine found in the packaged bags.

Where there is a lesser included offense for possessing a smaller amount of a controlled substance, the weight of the substance containing a drug is an essential element of a possession charge, and the weight of the substance containing the drug must therefore be proved beyond a reasonable doubt. (People v. Hill (1988), 169 Ill. App. 3d 901, 524 N.E.2d 604.) While the rule in Illinois is that a chemist need only test random samples in order to be qualified to render an opinion as to the makeup of the entire substance before him, this rule is not without limitation. (People v. Kaludis (1986), 146 Ill. App. 3d 888, 497 N.E.2d 360.) Where separate bags or containers of suspected drugs have been seized, a sample of each bag or container must be conclusively tested in order to prove that it contains a controlled substance. See People v. Maiden (1991), 210 Ill. App. 3d 390, 569 N.E.2d 120 (defendant’s conviction was reduced where chemist conclusively identified contraband in one of three liquor bottles although tests could have easily been performed to conclusively determine whether the substance in the other two bottles in fact contained PCP); People v. Hill (1988), 169 Ill. App. 3d 901, 524 N.E.2d 604 (where chemist only conclusively tested bags containing 21.93 grams of the suspect powder, State did not prove beyond a reasonable doubt that over 30 grams of the seized substance in fact contained cocaine); People v. Ayala (1981), 96 Ill. App. 3d 880, 422 N.E.2d 127 (conviction reduced where chemist conclusively tested the contents of only one bag of two, while rendering his opinion that both bags contained heroin); People v. Games (1981), 94 Ill. App. 3d 130, 418 N.E.2d 520 (conviction reduced where chemist testified that she chemically tested a portion of the contents of one bag, out of the two suspected of containing cannabis, and then stated that the “material tested” contained cannabis, but expressed no opinion as to the whole).

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People v. Miller, 578 N.E.2d 1065, 218 Ill. App. 3d 668, 161 Ill. Dec. 419, 1991 Ill. App. LEXIS 1382 (Ill. Ct. App. 1991).

578 N.E.2d 1065 (People v. Miller) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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