Third Division
November 15, 2002

No. 1-01-2143

While on probation, the defendant, Shelton Moore, was chargedwith delivery of a controlled substance within 1,000 feet of achurch, delivery of a controlled substance within 1,000 feet of aschool, and delivery of a controlled substance. Subsequently, theState filed a petition alleging that the defendant had violated theterms of his probation by committing the offense of delivery of acontrolled substance. In consolidated proceedings, the trialcourt, at the end of the State's case-in-chief, granted thedefendant's motion for a directed finding as to the charges fordelivery of a controlled substance within 1,000 feet of a school orchurch. Following closing arguments, the trial court found thedefendant not guilty of delivery of a controlled substance, butfound him guilty of violating his probation. The trial courtrevoked the defendant's probation and sentenced him to a prisonterm of three years. On appeal, the defendant contends that: (1)the evidence was insufficient to prove that he violated hisprobation by committing the offense of delivery of a controlledsubstance; (2) his trial counsel was ineffective for failing toobject to the consolidation of the trial on the delivery chargeswith the hearing on the petition to revoke probation; and (3) hissentence should be vacated because he was sentenced without apresentence investigation report. For the reasons which follow, wereverse.

On April 8, 1999, the defendant pled guilty to delivery of acontrolled substance in case number 99 CR 3865, and was placed onprobation for 24 months. While on probation, on January 30, 2000,the defendant was charged with delivery of a controlled substanceunder case number 00 CR 5935. On April 3, 2000, the State filed apetition for violation of probation, in which it alleged that thedefendant had violated his probation in case number 99 CR 3865 bycommitting the offense of delivery of a controlled substance withwhich he was charged in case number 00 CR 5935.⁽¹⁾

The defendant and codefendant Barry Miller were tried jointlyin a bench trial on the charges of delivery of a controlledsubstance. The following evidence was presented at trial. Chicagopolice officer Jeffery Adamik testified that, on January 30, 2000,he was working undercover near 5702 North Winthrop Avenue inChicago when he approached Miller and asked if he had any cocaine. Miller stated he did not have any cocaine, but then motioned overto the defendant, who was standing nearby. Officer Adamik andMiller walked over to the defendant, who then took the officer toan alley. The defendant asked the officer "how much," and Adamikresponded, "I need one." At that point, the defendant removed aclear plastic bag containing a substance which the officer suspected to be crack cocaine from his mouth, and handed it toOfficer Adamik in exchange for a $10 bill, the serial number ofwhich had been recorded. Officer Adamik then signaled to hisbackup police officers that he had made a narcotics purchase. Whenasked if he inventoried the item he received from the defendant,Officer Adamik replied "yes." No further testimony was elicitedabout the chain of custody of the contraband.

Chicago police officer Jonathan Way testified that, afterreceiving a radio transmission from Officer Adamik providing adescription of the offenders, he arrested the defendant andrecovered the prerecorded $10 bill, which Officer Adamik theninventoried. After Officer Way testified, the following colloquytook place:

"MS. O'MALLEY [prosecutor]: *** There would be a stipulation by and between the parties that the chain of custody is in tact [sic]. That were StarCirks, C-i-r-k-s, called to testify, she would testify she is a forensic scientist with the Illinois State Police, who analyzed the substance in the instant case to be point one gram of cocaine from one plastic bag, that was inventoried under No. 2293629."

With that, the State would rest.

MR. RUSNAK [defense counsel]: Your Honor, we would stipulate that forensic scientist Star Cirks tested an item that had been inventoried under 2293629, and that tested positive for cocaine. That's what we would stipulate to."

After the State rested, defense counsel immediately made amotion for a directed finding, arguing, inter alia, that the Statehad not proven a sufficient chain of custody because it presentedno testimony showing that the item inventoried by Officer Adamikwas the same item tested by the forensic scientist. In response,the State argued that Officer Adamik did testify that he hadinventoried the item. The trial court granted the motion fordirected finding as to the charges for delivery of a controlledsubstance within 1,000 feet of a school or church, but denied themotion on the charge for delivery of a controlled substance. Thedefense rested without presenting any evidence.

During closing arguments, defense counsel reiterated hisargument about the insufficiency of the chain of custody. Following closing arguments, the trial judge, noting that both theviolation of probation and the charge for delivery of a controlledsubstance were pending before it and involved the same facts, askedthe prosecutor if she wanted a ruling on both cases simultaneously. The prosecutor acquiesced to a simultaneous ruling on both cases,and defense counsel did not object. Thereafter, the trial courtfound the defendant guilty of violating his probation, but notguilty of delivery of a controlled substance. The trial court thenfound that the defendant's probation was terminatedunsatisfactorily and sentenced him to three years in prison. Thedefendant now appeals the trial court's order revoking hisprobation.

The defendant first contends that the State failed to provethat he violated the terms of his probation. The defendant doesnot contest that the commission of the offense of delivery of acontrolled substance constitutes a violation of probation, giventhat one of the conditions of his probation was that he not violateany criminal statute. Rather, he argues that the State did notprove that he committed that offense because Officer Adamik'stestimony was insufficient to establish a proper chain of custodylinking the substance recovered from him to the substance tested bythe forensic scientist.

The State must prove a violation of probation by apreponderance of the evidence. 730 ILCS 5/5-6-4(c) (West 2000). When the trial court finds that a violation has been proved, thiscourt will reverse only if the finding is against the manifestweight of the evidence. People v. Leigh, 45 Ill. App. 3d 563, 565(1976).

When contraband is sought to be introduced, it is the State'sburden to establish "'a chain of custody of sufficient completenessto render it improbable that the [evidence] has been tampered with,exchanged, or contaminated.'" People v. Gibson, 287 Ill. App. 3d878, 880-81 (1997), quoting People v. Terry, 211 Ill. App. 3d 968,973 (1991). The State must show that the police took reasonableprotective measures to ensure that the substance taken from thedefendant was the same as the substance tested by the forensicchemist. People v. Ryan, 129 Ill. App. 3d 915, 919 (1984). Thisrequires proof of delivery, presence, and safekeeping. Gibson, 287Ill. App. 3d at 882. Unless the defendant produces evidence ofactual tampering, substitution, or contamination, the State is onlyrequired to establish that reasonable protective measures wereemployed to protect the evidence from the time that it was seizedand that it is improbable that the evidence was altered. People v.Bynum, 257 Ill. App. 3d 502, 510 (1994). Once the State has doneso, the evidence is admissible and any remaining deficiencies inthe chain of custody merely go to the weight of the evidence. People v. Pettis, 184 Ill. App. 3d 743, 753-54 (1989). Finally,where there is a link in the chain missing, but testimony hasdescribed the condition of the evidence when it was seized and thatdescription matches the condition of the evidence when examined, acontinuous chain of custody is established. People v. Irpino, 122Ill. App. 3d 767, 775 (1984).

Defendant argues that, although the State offered to stipulatethat the "chain of custody is in tact [sic]," the only stipulationaccepted by both parties was that the forensic scientist analyzedthe substance inventoried under number 2293629 and determined thatit contained 0.1 gram of cocaine. The State does not address thedefendant's argument as to what was agreed to in the stipulation. Instead, the State argues that it established a sufficient chain ofcustody because there was no evidence suggesting that the evidencein question was subject to alteration, substitution or tampering. We will address each argument in turn.

A stipulation has been defined as an agreement between partieswith respect to business before the court. People v. Buford, 19Ill. App. 3d 766, 770 (1974). Stipulations relating to evidenceshould be construed to ascertain and give effect to the intentionof the parties. Buford, 19 Ill. App. 3d at 770. A review of therecord in this case shows that, after the State offered thestipulation stating that "the chain of custody is in tact [sic],"defense counsel clarified the facts to which he intended tostipulate and specifically omitted this phrase. Defense counselthen immediately moved for a directed finding, arguing that theState failed to prove that the item inventoried by Officer Adamikwas the item tested by the forensic scientist. Defense counselmade the same assertion in his closing argument. Under theseparticular facts, we find that defense counsel did not intend tostipulate to the chain of custody of the alleged contraband fromthe police officer to the crime laboratory. Accordingly, we mustnow consider whether, without this stipulated fact, there wassufficient evidence to prove a chain of custody.

In People v. Gibson, 287 Ill. App. 3d 878 (1997), the police,while investigating a complaint of narcotics sales, observed thedefendant drop a clear plastic bag. The police officer recoveredthe bag and saw that it held 19 clear plastic bags containing asubstance which the officer suspected to be cocaine. Afterarresting the defendant, the police officer then transported theevidence to the police station and assigned it an inventory number. At trial, the parties stipulated that the evidence assigned to thatsame inventory number weighed 9.3 grams and tested positive forcrack cocaine. In finding that the State failed to prove asufficiently complete chain of custody, we stated there was "noevidence regarding the handling and safekeeping of the evidencebetween the custody of [the police officer] and [the labtechnician], there was also no evidence specifically detailing whatprocedures [the police officer] himself employed with regard to thesafekeeping of that evidence." Gibson, 287 Ill. App. 3d at 882. We noted that, other than the testimony of the police officer thathe inventoried the recovered objects under a certain inventorynumber, the only evidence offered to prove the chain of custody wasthe parties' stipulation that the lab technician tested theevidence assigned to that same inventory number. Gibson, 287 Ill.App. 3d at 882. The failure of the State to establish a sufficientchain of custody, combined with the discrepancies as to the weightof the evidence, led us to reverse the defendant's conviction. Gibson, 287 Ill. App. 3d at 882-83.

We find that the chain of custody in the instant case suffersfrom the same infirmities as in Gibson. Here, as in Gibson, theState did not present any evidence detailing what procedures, ifany, Officer Adamik employed concerning the handling andsafekeeping of the evidence between his recovery of the plastic bagand the custody of the evidence by the State's forensic scientist. At least in Gibson, the police officer testified that hetransported the evidence to the police station and assigned it aninventory number. Here, there was no such testimony. OfficerAdamik merely testified that he inventoried the item retrieved fromthe defendant; he did not testify as to what inventory number heassigned to the item. The State did not elicit any furthertestimony regarding the handling and safekeeping of the evidence,such as whether the evidence was sealed or secured in the plasticbag, whether the forensic scientist received a sealed bag, wherethe bag was kept before it was turned over to the State laboratory,or when the bag was turned over. Further, as we found earlier, thedefendant did not stipulate to the chain of custody. The Statecorrectly asserts that, because the defendant made no claim of andpresented no evidence of actual tampering, it was only required toestablish that reasonable protective measures were employed fromthe time the evidence was seized and that it was improbable thatthe evidence was altered. The State, however, has simply failed todo so in this case. As in Gibson, other than the testimony thatOfficer Adamik inventoried the item given by the defendant, theonly evidence the State offered to prove the chain of custody wasthe stipulation that established that the forensic scientistanalyzed the substance that was inventoried under number 2293629,which tested positive for 0.1 gram cocaine. The State argues thatwe cannot rely on cases which apply a reasonable doubt burden ofproof where it was only required to establish the defendant'sviolation of probation by a preponderance of the evidence standard.In the instant case, however, the State presented no evidence ofsafekeeping and thus did not meet its burden under either standardof proof. We find that the State failed to present sufficientevidence of "delivery, presence and safekeeping" to establish asufficiently complete chain of custody. Gibson, 287 Ill. App. 3dat 882, citing People v. Judkins, 10 Ill. 2d 445, 448 (1957).

We have concluded that the State failed to establish asufficient chain of custody for the item seized from the defendant. The defendant argues that, as such, the State failed to prove thatthe substance he delivered to Officer Adamik was a controlledsubstance and accordingly, the trial court's finding that heviolated the terms of his probation is against the manifest weightof the evidence. Therefore, he asserts that we must reverse thetrial court's order revoking his probation.

Our research reveals that attacks on the sufficiency of achain of custody have been raised and addressed both in the contextof a sufficiency of the evidence argument, as in this case, (seeJudkins, 10 Ill. 2d at 448; People v. Pavone, 241 Ill. App. 3d1001, 1004 (1993); Gibson, 287 Ill. App. 3d at 880)), and in thecontext of a claim that the trial court erred in admitting certainevidence because the chain of custody was not established (seePeople v. Payne, 239 Ill. App. 3d 698, 706 (1993); People v. Lach,302 Ill. App. 3d 587, 593-94 (1998); People v. Dixon, 228 Ill. App.3d 29, 38-39 (1992)). When the issue is one which concerns thesufficiency of the evidence, we are required to reverse outright,whereas the erroneous admission of evidence is a procedural errorwhich allows us to remand for a new trial. People v. Olivera, 164Ill. 2d 382, 393 (1995).

In People v. Maurice, 31 Ill. 2d 456 (1964), the defendant hadbeen convicted of illegal dispensing of narcotics. At trial, theparties entered into a stipulation which provided that policeofficers would testify that they recovered a total of eight tinfoilpackets which had been disposed of by the defendant and a thirdperson to whom he had sold one of the packets. The stipulationfurther provided that Officer Craig would testify that he delivereda single foil packet to the crime laboratory and that the chemistwould testify that he received from Officer Allen eight foilpackets, all of which tested positive for the presence of heroin.Maurice, 31 Ill. 2d at 457. Our supreme court found that the Statehad failed "to connect the material analyzed by the chemist withthe same packets connected with" the defendant. Maurice, 31 Ill.2d at 458. It refused to accept as true the State's assertion thatthe discrepancy was due to the inadvertence of the assistantState's Attorney that read the stipulation into the record. Rather, the court concluded that the admission of the heroin intoevidence without a sufficient chain of custody was error and,accordingly, reversed the defendant's conviction and remanded fora new trial. Maurice, 31 Ill. 2d at 457-59.

Subsequently, in In re R.F., 298 Ill. App. 3d 13 (1998), thiscourt found the chain of custody over a controlled substance to belacking and reversed the respondent's adjudication outright. Atthe adjudicatory hearing, the State established that a plastic bagcontaining 23 tinfoil packets was recovered by a police officer andthen given an inventory number. A stipulation provided that aforensic scientist examined one packet which tested positive for.01 gram of heroin. The officer could not recall whether heinventoried the items under the same inventory number. The courtnoted that there were no matching inventory numbers between theitems seized and the substance analyzed, and no inventory envelopewas introduced into evidence. In re R.F., 298 Ill. App. 3d at 15.The court found the evidence insufficient to establish a foundationthat the 23 packets, one of which contained heroin, were in factrecovered from the respondent. In re R.F., 298 Ill. App. 3d at 15. The court then determined whether the insufficiency of thefoundation for the admission of the heroin required an outrightreversal, or a reversal and remand for another adjudicatoryhearing. In distinguishing Maurice, this court stated:

"Presumably, the Maurice court believed that the chain of custody could be established through competent evidence upon remand. The fact that the court remanded that case, however, does not compel the same conclusion here. The court did not rule that all such cases must be remanded. Moreover, the State in that case indicated that the stipulation as to the heroin was misstated, not that a chain of custody did not exist. Thus, the supreme court concluded that improper evidence was admitted, not that the State insufficiently proved its case.

The instant case is different. After putting on its case, the State failed to show a foundation for the admission of the heroin." In re R.F., 298 Ill. App. 3d at 15.

This case before us is more akin to In re R.F. than toMaurice. In Maurice, it appeared that there may have simply beenan error in reading the stipulation into the record. Here it isclear that the defendant never intended to stipulate that the chainof custody was intact. The State has simply failed to prove itscase, as there was no evidence establishing a sufficient chain ofcustody. Accordingly, the insufficiency of evidence requires thatwe reverse the trial court's order revoking the defendant'sprobation. See In re R.F., 298 Ill. App. 3d at 16; Gibson, 287Ill. App. 3d at 882-83; People v. Slaughter, 149 Ill. App. 3d 183,187-88 (1986). In light of our decision, we need not address thedefendant's remaining arguments on appeal.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

SOUTH, P.J., and HALL, J., concur.

1. The petition also alleged that the defendant violated hisprobation by committing the offense of delivery of cannabis onJanuary 29, 2000, and for failing to pay the entire amount of theprobation fee, as ordered by the court. However, no evidence waspresented on either of these two charges at the subsequentprobation revocation hearing.