2019 IL App (1st) 163022
FIRST DIVISION September 30, 2019
No. 1-16-3022
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 16 CR 4637 ) RONALD SCOTT, ) The Honorable ) James B. Linn, Defendant-Appellant. ) Judge Presiding.
JUSTICE PIERCE delivered the judgment of the court, with opinion. Presiding Justice Griffin and Justice Walker concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Ronald Scott was convicted of delivery of more than 1
but less than 15 grams of heroin (720 ILCS 570/401(c)(1) (West 2016)). On appeal, he argues
that the State failed to lay a sufficiently complete foundation for the admissibility of the heroin.
Alternatively, he argues for the first time on appeal, and the State concedes, that his mittimus
should be corrected to reflect the proper offense for which he was convicted. For the reasons that
follow, we affirm the judgment of the circuit court of Cook County, and remand to the circuit
court to permit defendant to file a motion pursuant to Illinois Supreme Court Rule 472(a), (e)
(eff. May 17, 2019). No. 1-16-3022
¶2 I. BACKGROUND
¶3 Defendant was charged with one count of delivery of more than 1 but less than 15 grams
of heroin (720 ILCS 570/401(c)(1) (West 2016)), and one count of delivery of more than 1 but
less than 15 grams of heroin within 1000 feet of a school (id. § 407(b)(1)). Prior to trial,
defendant moved to exclude the heroin, arguing that the initial narcotics investigation report
drafted by the police estimated that the heroin weighed 0.6 grams, while the Illinois State Police
chemist intended to testify at trial that the heroin weighed 1.09 grams. The circuit court denied
the motion to exclude, and the matter proceeded to a bench trial.
¶4 Chicago police officer Cobb 1 testified that on February 21, 2016, he was working as an
undercover buy officer. At 1:46 p.m., he approached the intersection of West Augusta Avenue
and North Long Street on foot. Officer Cobb approached defendant and asked “You working?”
Defendant responded, “You want something, too?” Officer Cobb said “Three,” and observed
defendant retrieve small items from a clear plastic bag that defendant was holding in his hand.
Officer Cobb handed defendant three premarked $10 bills, and defendant handed him three clear
capsules containing a white powder that Officer Cobb believed to be heroin. After leaving,
Officer Cobb radioed his team that the “suspect narcotics transaction was a positive,” and
provided a description of defendant and his clothing. After other officers detained defendant,
Officer Cobb drove past the scene and identified defendant as the person whole sold him the
capsules. He then drove back to the police station with the capsules, where they were inventoried
and assigned inventory no. 13631143. The capsules were then placed in a heat-sealed bag, which
was then placed in a narcotics vault. Officer Cobb identified People’s Exhibit. No. 1 as the
inventory bag containing the suspected narcotics. He testified that the bag was in the same or
substantially similar condition as when he last saw it, except that the bag itself had been placed 1 Officer Cobb’s first name does not appear in the record on appeal.
2 No. 1-16-3022
inside a different clear plastic bag with two different stickers on it with numbers and serial
numbers. Also on February 21, 2016, Officer Cobb was shown a photograph array from which
he identified defendant as the person who sold him the capsules. The State published a video of
the transaction to the circuit court, and Officer Cobb identified himself and the defendant in the
video. On cross-examination, Officer Cobb testified that he weighed the capsules, which came to
an estimated weight of 0.6 grams. On redirect, Officer Cobb clarified that he did not place the
capsules on a scale, but instead used a chart that estimates weight based on the size of a capsule.
¶5 Chicago police officer Lacko 2 testified that on February 21, 2016, he was working as a
surveillance officer as part of an undercover buy team. He was in an unmarked police vehicle
with a hand-held video recorder. He testified that Officer Cobb was going make a buy. Officer
Lacko observed Officer Cobb approach the defendant and have a short conversation, after which
Officer Cobb handed defendant premarked currency and defendant dropped unknown items into
Officer Cobb’s hand. Officer Lacko recorded the transaction with his video camera. After the
transaction, he heard over his radio that Officer Cobb made a positive narcotics transaction.
Officer Lacko continued to observe defendant for 30 minutes after the transaction. Officer Lacko
made an in-court identification of defendant as the person whom he saw hand Officer Cobb the
capsules.
¶6 Chicago police officer Beluso 3 testified that he was working on the undercover buy team
on February 21, 2016. He did not observe the transaction between defendant and Officer Cobb.
After Officer Cobb confirmed over the radio that a narcotics transaction occurred and provided a
description of defendant, Officer Beluso made contact with defendant. Officer Beluso made an
in-court identification of defendant as the person with whom he had spoken. After Officer
2 Officer Lacko’s first name does not appear in the record on appeal. 3 Officer Beluso’s first name does not appear in the record on appeal.
3 No. 1-16-3022
Beluso asked defendant to approach his vehicle, defendant fled and Officer Beluso gave chase.
After catching up to defendant, Officer Beluso performed a soft stop, which he described as
“very casual, easy going conversation.” He did not perform a pat down or search of defendant.
Defendant provided his name, and Officer Beluso used his computer to search for defendant.
After the encounter, Officer Beluso filled out an investigatory stop report.
¶7 Forensic scientist Tiffany Neal testified that she was employed by the Illinois State Police
Forensic Science Center in Chicago. She specialized in drug chemistry, and defendant stipulated
to her qualifications to testify as an expert. She identified People’s Exhibit no. 1 as the evidence
for laboratory case no. C-164104. She stated that she could identify it as something that she had
worked on by the laboratory case number, her initials, and the date. She stated that she received
the evidence in a heat-sealed condition from an evidence technician on February 24, 2016, at the
drug chemistry vault. After receiving the evidence, she locked it inside her drug chemistry work
station until she could analyze it. She recognized the markings on the outside of the evidence bag
because she had analyzed and tested what was inside the bag. She testified that she opened the
bag and verified that the contents were consistent with what was written on the inventory sheet.
She weighed the items, which weighed 1.09 grams. Her testing confirmed the presence of heroin.
After testing the items, she resealed the evidence into new plastic bags and placed the new bags
into a plastic bag, which was then resealed. She labeled the bag with a case number, the date, her
initials, and placed it in the original evidence bag, which was then heat-sealed. She initialed the
bag, dated it, and returned it to the drug chemistry vault. She testified that People’s Exhibit no. 1
appeared to be in the same or substantially the same condition as it was she completed her
analysis.
4 No. 1-16-3022
¶8 The State then moved to admit the heroin into evidence. Defendant renewed his pretrial
motion to exclude the heroin, which the circuit court denied. The State rested its case-in-chief.
Defendant made an oral motion for a directed finding, arguing that the discrepancy between the
estimated weight on the initial narcotics investigation report drafted by the police and Neal’s
testimony suggested that the heroin she tested was not what was recovered by the police.
Defendant further argued that the State failed to show a sufficient chain of custody for the heroin
because the State did not present any testimony from the evidence technician from whom Neal
received the evidence. The circuit court denied the motion for a directed finding.
¶9 Defendant called his mother Gwenda Scott as witness. She testified that defendant
arrived at her home around 1:00 p.m. on February 21, 2016. He was talking with his brothers and
watching TV. She did not see or hear him leave until after 6:30 p.m., after they ate dinner
together.
¶ 10 After hearing closing arguments from counsel, the circuit court took the matter under
advisement. On August 8, 2016, the circuit court found defendant guilty of delivery of more than
1 but less than 15 grams of heroin. The circuit court found that the State failed to prove beyond a
reasonable doubt that the transaction took place within 1000 feet of a school. At sentencing,
there was no dispute that, due to his background, defendant was Class X mandatory. He was
sentenced to eight years’ imprisonment. Defendant filed a posttrial motion raising several issues,
including that the circuit court erred by admitting the heroin into evidence. Defendant’s posttrial
motion was denied, and he filed a timely notice of appeal.
¶ 11 II. ANALYSIS
¶ 12 On appeal, defendant argues that the circuit court abused its discretion by admitting the
heroin into evidence where the State failed to lay a sufficiently complete foundation for its
5 No. 1-16-3022
admission. He argues that the State failed to establish that People’s Exhibit no. 1 was labeled
with the inventory number that Officer Cobb testified was given to the recovered capsules. He
further argues that Neal did not testify that she tested a substance with that inventory number. He
argues that that discrepancy between the estimated weight of the substance and the weight
testified to by Neal suggests that the substance tested by Neal was not the same substance
recovered and inventoried by Officer Cobb. Finally, he argues that the State did not meet its
burden of establishing a sufficiently complete chain of custody. Defendant does not raise any
issue on appeal regarding the circuit court’s denial of his motion for a directed finding at the
close of the State’s evidence, or advance any argument challenging the sufficiency of the
evidence.
¶ 13 The State responds in part that defendant forfeited his chain of custody argument by
failing to make a specific objection at trial, and by failing to raise a chain of custody argument in
his posttrial motion. The State contends that at trial, defendant only objected to the admissibility
of the heroin on the basis of discrepancy between Officer Cobb’s estimated weight of the heroin
and Neal’s measured weight of the heroin.
¶ 14 We agree with the State that defendant has forfeited his chain of custody arguments. “[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.” People v. Woods, 214 Ill. 2d 455, 470 (2005).
“If a defendant fails to satisfy either prong of this test, his challenge is considered waived on
appeal.” Id. A finding of forfeiture is “particularly appropriate when a defendant argues that the
State failed to lay the proper technical foundation for the admission of evidence, and a
defendant’s lack of a timely and specific objection deprives the State of the opportunity to
correct any deficiency in the foundational proof at the trial level.” Id.
6 No. 1-16-3022
¶ 15 Here, defendant’s sole objection at trial to the admission of the heroin into evidence was
that the discrepancy between Officer Cobb’s estimated weight of the heroin at 0.6 grams and
Neal’s measured weight of the heroin at 1.09 grams was so great and unreliable as to make it
inadmissible. Defendant did not make a specific trial objection to the admissibility of the heroin
due to a lack of chain of custody: he did not object to the admission of the heroin into evidence
on the grounds that Neal failed to identify People’s Exhibit no. 1 by the inventory number
identified by Officer Cobb, and did not object that the State failed to establish an sufficiently
complete chain of custody by failing to call the evidence technician to testify at trial. Defendant’s
failure to specifically object at trial to the State’s foundation for the admission of the heroin into
evidence results in forfeiture. 4
¶ 16 In his reply, defendant argues that if we deem his chain of custody arguments forfeited,
we may nevertheless address his arguments under the doctrine of plain error. He argues that plain
error review is appropriate in situations involving a complete breakdown of the chain of custody,
which occurred here because the State never showed that the evidence recovered and the
evidence tested contained the same unique identifiers.
¶ 17 The plain error doctrine allows a court of review to consider a forfeited error when
“(1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious,
regardless of the closeness of the evidence.” People v. Herron, 215 Ill. 2d 167, 186-87 (2005).
Our first step is to determine whether an error has occurred. As our supreme court explained in
Woods, when the State seeks to introduce contraband into evidence,
4 We note that defendant did argue in his oral motion for a directed finding following the State’s case–in-chief that the State failed to establish a sufficiently complete chain of custody for the heroin by failing to call the evidence technician from whom Neal received the heroin as witness. But on appeal, defendant does not argue that the circuit court erred by denying his motion for a directed finding, and he does note argue that the arguments made in support of his motion for a directed verdict amounted to a specific trial objection to the admissibility of the heroin.
7 No. 1-16-3022
“[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. [Citations.] The State must show that the police took
reasonable protective measures to ensure that the substance recovered from the
defendant was the same substance tested by the forensic chemist. [Citation.]
Unless the defendant produces evidence of actual tampering, substitution or
contamination, a sufficiently complete chain of custody does not require that
every person in the chain testify, nor must the State exclude every possibility of
tampering or contamination; the State must demonstrate, however, that reasonable
measures were employed to protect the evidence from the time that it was seized
and that it was unlikely that the evidence has been altered. [Citations.]” Woods,
214 Ill. 2d at 467.
¶ 18 “ ‘Once the State has established the probability that the evidence was not compromised,
and unless 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. (quoting People v.
Bynum, 257 Ill. App. 3d 502, 510 (1994)).
¶ 19 We find that the circuit court did not err by admitting the heroin into evidence because
the State laid a sufficiently complete foundation for its admission. Officer Cobb testified that he
recognized People’s Exhibit no. 1 as the inventory bag containing the suspected narcotics, and
that the bag was in the same or substantially similar condition as when he last saw it, except that
the bag itself had been placed inside a different clear plastic bag with two different stickers on it
with numbers and serial numbers. He testified that he heat-sealed the bag at the police station
and placed it in the narcotics vault at the police station. Neal testified that People’s Exhibit no. 1
8 No. 1-16-3022
was the bag that she tested and that she received from an evidence technician from the drug
chemistry vault. She testified that the bag was heat-sealed when she received it and that the
contents of the bag matched the inventory sheet that accompanied the bag. She testified that the
bag was in substantially the same condition as it as was when she returned it to the evidence
technicians after completing her testing. We find that the State sufficiently established that
reasonable measures were employed to protect the evidence from the time that it was seized, and
that it was unlikely that the evidence has been altered. To establish a sufficiently complete chain
of custody, the State was not required to call every person in the chain to testify at trial. Woods,
214 Ill. 2d at 467. Defendant did not come forward with any evidence of actual tampering,
substitution, or contamination; his only objection was to the discrepancy between Officer Cobb’s
estimated weight and Neal’s measured weight. Because he did not come forward with evidence
of actual tampering, substitution, or contamination, any deficiencies in the chain of custody go to
the weight, not admissibility, of the evidence. Id. Therefore, the circuit court did not plainly err
in admitting the heroin into evidence.
¶ 20 Defendant relies on People v. Howard, 387 Ill. App. 3d 997 (2009) to support his
argument that the heroin was inadmissible because the State failed to establish a sufficiently
complete chain of custody to make it improbable that the evidence had been subject to tampering
or accidental substitution. In Howard, the defendant argued on appeal that the State failed to lay
an adequate foundation for the admissibility of cocaine. At trial, the State presented testimony
from a police officer, Officer Gately, who purchased cocaine from the defendant in an
undercover buy. The officer testified that he and another officer, Master Sergeant Wellbank,
weighed the cocaine on a scale, which showed that it weighed 53 grams, and then packaged the
cocaine. Gately identified the cocaine from his initials on the evidence bag into which he had
9 No. 1-16-3022
placed the cocaine, as well his ID number and Wellbank’s initials, which they had written on the
bag. Wellbank also identified the evidence bag as containing his ID number, his initials, and the
date of sale. Wellbank placed it in an evidence vault and later drove the cocaine to a crime lab.
An officer at the crime lab logged the cocaine and then took the evidence bag to a forensic
chemist. The chemist identified the bag as the cocaine he received from the officer at the crime
lab, and testified that the bag contained cocaine and weighed 51.2 grams.
¶ 21 On appeal, a panel of the Second District concluded that the State failed to lay an
adequate chain of custody for the cocaine because “the State failed to provide proper evidence
that no accidental substitution of the evidence occurred.” Id. at 1003-04. The Howard court
rejected the State’s argument “the weight measurements, taken with the initials, badge numbers,
and date, are sufficient to show that accidental substitution was improbable.” Id. at 1005. Instead,
the Second District found that “[t]he State would have shown that accidental substitution was
improbable only if it showed that it was improbable that the same officers would have handled
another bag of white powder of similar weight on that day.” Id. The court concluded:
“The State’s ‘burden [was] to establish a custody chain that is sufficiently
complete to make it improbable that the evidence has been subject to tampering or
accidental substitution.’ Woods, 214 Ill. 2d at 467[.] The initials, badge numbers,
date, and weight measurements fail that standard as a matter of law. For us to
accept other information as overcoming the weaknesses of that information would
require us to become advocates for the State’s position. Thus, despite the
deference we accord the trial court under an abuse of discretion standard, we must
hold that admission of the exhibit was improper.” Howard, 387 Ill. App. 3d at
1006.
10 No. 1-16-3022
¶ 22 Howard’s conception of the standard for establishing a chain of custody has been
criticized and disavowed by other panels of the Second District. In People v. Blankenship, 406
Ill. App. 3d 578 (2010), a panel of the Second District criticized Howard’s finding that the
officers’ initials, badge numbers, the date, and the weight measurements failed to make it
improbable that the evidence had been subject to tampering or accidental substitution as a matter
of law, noting that such a rule “would curb the flexibility that the case law consistently grants the
State in establishing a prima facie case.” Blankenship, 406 Ill. App. 3d at 593. The Blankenship
court reassessed the evidence in Howard and concluded that the officers’ testimony that they
(1) “processed the drugs in the field after seizing them from the defendant” (id.), (2) “identified
the evidence package by certain markings, i.e., the date, the time, and their initials” (id.), and
(3) “noted the respects in which the package was different from when they had handled it,
specifically that it had been opened by the crime lab, then sealed and marked with initials” (id.),
was sufficient to show that the police had taken reasonable protective measures to differentiate
the cocaine from any other drugs seized by the police. Id. The Blankenship court reiterated that it
was the defendant’s burden to show evidence of actual tampering or substitution, and observed
that the Howard court failed to identify any such evidence. Id. Another panel of the Second
District disavowed Howard “to the extent that Howard holds that *** a [unique] identifying
number is required as a matter of law” to establish that reasonable protective measures were
taken by police. People v. Anderson, 2013 IL App (2d) 111183, ¶ 46.
¶ 23 We decline to follow Howard’s flawed approach to determining admissibility, and
instead apply the principles set forth by our supreme court in Woods. Here, the State presented
testimony from Officer Cobb that People’s Exhibit no. 1 was what it purported to be: the heroin
sold to Cobb by defendant. He testified as to how the contraband was stored and inventoried.
11 No. 1-16-3022
Neal testified People’s Exhibit no. 1 was what evidence she tested. Defendant failed to make any
objection at trial to the chain of custody, and failed to present any evidence of actual tampering
or substitution. While the State may not have presented a perfect chain of custody, it presented
sufficient evidence to show that reasonable measures were employed to protect the evidence
from the time that it was seized through the time it was analyzed, and that it was unlikely that the
evidence had been tampered with, substituted, or contaminated. Defendant’s objections to the
chain of custody go to the weight of the evidence, not it admissibility. Because we find no error
in the circuit court’s admission of the evidence, defendant is not entitled to any relief under the
plain error doctrine.
¶ 24 Finally, defendant argues—and the State concedes—that his mittimus should be
corrected to reflect the proper offense for which he was convicted. His argument is simple: the
circuit court entered judgment on the charge of delivery of more than 1 but less than 15 grams of
heroin within 1000 feet of a school, despite the circuit court’s finding that the State failed to
prove that the transaction occurred within 1000 feet of a school.
¶ 25 Illinois Supreme Court Rule 472 provides that
“(a) In criminal cases, the circuit court retains jurisdiction to correct the following
sentencing errors at any time following judgment and after notice to the parties,
including during the pendency of an appeal, on the court’s own motion, or on
motion of any party:
***
(4) Clerical errors in the written sentencing order or other part of the
record resulting in a discrepancy between the record and the actual
judgment of the court.
12 No. 1-16-3022
(e) In all criminal cases pending on appeal as of March 1, 2019, or appeals filed
thereafter in which a party has attempted to raise sentencing errors covered by this
rule for the first time on appeal, the reviewing court shall remand to the circuit
court to allow the party to file a motion pursuant to this rule.” Ill. S. Ct. R.
472(a)(4), (e) (eff. May 17, 2019).
¶ 26 Here, there is no indication that defendant raised the issue of an error in his written
sentencing order before the circuit court, and it has therefore been raised for the first time on
appeal. Despite the State’s concession, we lack jurisdiction to address defendant’s argument. “By
rule, defendant must first file a motion in the circuit court requesting the correction of any
sentencing errors specified in Rule 472(a).” People v. Whittenburg, 2019 IL App (1st) 163267,
¶ 4. Pursuant to Rule 472(e), we remand this matter to the circuit court to permit defendant an
opportunity to file a motion to correct the mittimus.
¶ 27 III. CONCLUSION
¶ 28 For the foregoing reasons, the judgment of the circuit court is affirmed, and we remand
pursuant to Rule 472(e).
¶ 29 Affirmed and remanded.