NO. 4-02-1027
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
RIGOBERTO G. ECHAVARRIA, ) No. 02CF1192
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
JUSTICE KNECHT delivered the opinion of the court:
Following a jury trial in the Champaign County circuitcourt, defendant, Rigoberto G. Echavarria, was convicted ofpossession of a controlled substance with intent to deliver (720ILCS 570/401(a)(2)(A) (West 2002)) and sentenced to 12 years'imprisonment. Defendant appeals his conviction and sentence,contending (1) the evidence was insufficient to establish thechain of custody to allow the cocaine into evidence; (2) hisguilt of intent to deliver was not proved beyond a reasonabledoubt; and (3) the trial court abused its discretion in sentencing him to 12 years in prison. We affirm.
I. BACKGROUND
After defendant was arrested for the offense in question, he posted bond and did not appear again until arrested on awarrant after trial. His jury trial proceeded in his absence inSeptember 2002. Chief among the witnesses against defendant attrial was Douglas Beals. Beals testified in May 2002 his homewas the subject of a police search warrant. During the search,law-enforcement officials found a quantity of cocaine and cannabis. Beals admitted the drugs belonged to him and he offered tohelp law-enforcement officers with future drug investigations tohelp his situation. The officers did not make any promises toBeals but said they would inform the prosecutor of his cooperation. At the time of his testimony, Beals had not been chargedwith a criminal offense for the controlled substances found inhis home.
As part of his offer to cooperate with law enforcement,Beals arranged for defendant to deliver drugs to him on July 3,2002. He identified defendant from his driver's license photograph at trial as the man he arranged to have deliver drugs tohim.
Beals stated on July 3, 2002, he called defendant'scellular telephone and made arrangements to have defendant meethim at the Aldi's store on Mattis Avenue in Champaign. Bealsthen contacted Dale Rawdin, a detective with the Champaign policedepartment currently assigned as an inspector with the IllinoisState Police to Task Force X, a multijurisdictional group of law-enforcement officers assigned to narcotics investigations. Bealsindicated defendant agreed to deliver cocaine to him and described defendant as a young, slight-built Hispanic male whowould be at the Aldi's parking lot at approximately 7 p.m.driving a gray pickup truck.
Inspector Rawdin testified for the State and corroborated Beals's testimony. Surveillance of the Aldi's parking lotwas established and Inspector Rawdin testified a gray pickuptruck with a young Hispanic male driver entered the lot shortlybefore 7 p.m. The driver exited the vehicle and began lookingaround the parking lot. Two Champaign police sergeants apprehended the man. Inspector Rawdin approached defendant immediately after he was apprehended. He heard Sergeant Jon Swensontell defendant he wanted to talk to him about the cocaine in hispocket. He then heard the suspect tell Sergeant Swenson hebought the cocaine from a black male on a street corner for $500. Inspector Rawdin identified a driver's license photograph ofdefendant as the same individual he saw driving the pickup truckand taken into custody.
Inspector Rawdin stated at the time he was taken intocustody defendant was in possession of what the lab later determined to be approximately 23 grams of cocaine. Rawdin stated ithad a street value of approximately $2,300. He understood fromhis conversations with Beals one ounce of cocaine was to bedelivered and an ounce consisted of 28 grams. Inspector Rawdinstated in his experience as a narcotics investigator, cocaine issold at the street level in grams or half gram Baggies. Following the execution of a consent search of defendant's residence,no Baggies, no large amounts of cash, and no scale were found. Inspector Rawdin stated the presence of a scale and Baggies wouldindicate an individual was distributing cocaine.
Champaign police sergeant John Schweighart testified onJuly 3, 2002, he was part of the surveillance team at the parkinglot. He and Sergeant Jon Swenson approached a young Hispanicmale. Sergeant Schweighart identified the driver's licensephotograph of defendant as the individual he approached in theAldi's parking lot. Sergeant Schweighart held defendant's armwhile Sergeant Swenson searched defendant and removed a quantityof contraband from defendant's pants pocket. SergeantSchweighart testified State's exhibit No. 1 appeared to be theitem Sergeant Swenson removed from defendant's pocket and it wasin substantially the same condition as it was when he saw Sergeant Swenson remove it.
Sergeant Swenson did not testify. David Shaffertestified he was a Champaign police officer and participated inthe search of defendant's home on July 3, 2002. During thesearch, Officer Shaffer located a driver's license and residentalien card in defendant's name in a bedroom. Officer Shafferidentified the individual apprehended in the Aldi's parking lotas the same individual depicted on the driver's license photograph.
The parties then stipulated, if called as a witness,John Martin would testify he was a forensic scientist with theIllinois State Police and he received State's exhibit No. 1, asealed evidence bag, from Willie Gartrell of Task Force X on July8, 2002. Martin would further testify he analyzed the contentsof exhibit No. 1 and found it to be 22.6 grams of a chunky, whitepowder containing cocaine. Martin would also testify he resealedthe contents of exhibit No. 1 and returned it to Gartrell onSeptember 10, 2002. The State rested. Without objection,exhibit Nos. 1 and 2 were admitted into evidence. The court theninquired about a stipulation regarding the testimony of Gartrelland the prosecutor responded, "I included it in the stipulationfor the lab." There had been an earlier mistrial in this case. The State apparently chose to try the case again without thetestimony of Sergeant Swenson or Willie Gartrell.
Defendant did not put on any evidence and moved for adirected verdict, which was denied. The jury found defendantguilty of possession of a controlled substance with intent todeliver.
Defendant filed a posttrial motion alleging generallythe evidence was insufficient as a matter of law to prove himguilty beyond a reasonable doubt. The posttrial motion wasdenied and defendant was sentenced in absentia.
A motion to reconsider sentence was heard and denied. Defendant was apprehended and returned to Illinois where he wasadmonished of his appeal rights in open court and a timely appealwas filed.
On appeal, we reversed defendant's conviction, holdingthe evidence presented at defendant's trial was insufficient tosustain a guilty finding because the State failed to establish asufficient chain of custody for the controlled substance. Peoplev. Echavarria, No. 4-02-1027 (December 22, 2004) (unpublishedorder under Supreme Court Rule 23). Pursuant to supreme courtsupervisory order (People v. Echavarria, 215 Ill. 2d 604, 828N.E.2d 283 (2005) (nonprecedential supervisory order on denial ofpetition for leave to appeal)), we were ordered to vacate ourRule 23 decision and reconsider this case in light of People v.Woods, 214 Ill. 2d 455, 828 N.E.2d 247 (2005). We now affirm thetrial court's judgment.
II. ANALYSIS
A. Sufficiency of the Chain of Custody
Defendant asserts the evidence was insufficient toestablish the chain of custody to allow the cocaine into evidence. The State contends the issue of the sufficiency of theevidence to form an adequate chain of custody for exhibit No. 1,the bag purportedly containing cocaine, has been forfeited bydefendant for failure to object to the admission of the exhibitinto evidence and the failure to raise it in his posttrialmotion.
To sustain a conviction for possession of a controlledsubstance with intent to deliver, the State must prove (1) thedefendant had knowledge of the presence of the controlled substance, (2) the controlled substance was in the immediate controlor possession of the defendant, and (3) the defendant intended todeliver the controlled substance. See People v. Robinson, 167Ill. 2d 397, 407, 657 N.E.2d 1020, 1026 (1995). "The State mustprove the material recovered from the defendant and which formsthe basis of the charge is, in fact, a controlled substance." Woods, 214 Ill. 2d at 466, 828 N.E.2d at 254.
To establish a sufficient chain of custody, the Statemust prove delivery, presence, and safekeeping of the evidence. People v. Gibson, 287 Ill. App. 3d 878, 882, 679 N.E.2d 419, 422 (1997). In determining the adequacy of the chain of custody ofan item sought to be introduced into evidence, the characteristics of the item are an important consideration. If an itempossesses unique and readily identifiable characteristics and isrelatively impervious to change, testimony the item sought to beadmitted is the same one recovered and in substantially the samecondition as when recovered provides an adequate foundation foradmission into evidence. People v. Cowans, 336 Ill. App. 3d 173,176, 782 N.E.2d 779, 782 (2002).
If the item is not readily identifiable or is susceptible to alteration by tampering or contamination, its "chain ofcustody must be established by the State with sufficient completeness to render it improbable that the original item haseither been exchanged, contaminated, or subjected to tampering." Cowans, 336 Ill. App. 3d at 176, 782 N.E.2d at 782-83. A quantity of cocaine is not readily identifiable and is easily subjectto tampering, contamination, or alteration. There is also thepossibility of a mistake or mislabeling. See Cowans, 336 Ill.App. 3d at 176, 782 N.E.2d at 783; People v. Irpino, 122 Ill.App. 3d 767, 773, 461 N.E.2d 999, 1004 (1984). In this case, theState was required to establish a chain of custody sufficientlycomplete to demonstrate the quantity of cocaine sought to beintroduced and analyzed by the State crime lab was the samequantity of cocaine recovered from defendant by Sergeant Swenson.
In our Rule 23 order, we found the issue of the sufficiency of the chain of custody evidence was not forfeited, and wenoted the serious concerns we had concerning the chain-of-custodyevidence presented by the State and found it lacking. However,after reviewing the supreme court's opinion in Woods, we find itapplicable. We conclude the issue of the sufficiency of thechain-of-custody evidence has been forfeited and the actualevidence presented in this case to have met the bare minimumstandard for sufficiency enunciated in Woods.
In Woods, the defendant was apprehended after havingbeen seen apparently selling contraband to passing motorists. While under surveillance, Woods took paper currency from stoppedmotorists and removed an object from the area of the front tireof a parked vehicle, handing the object to the motorist. Woods,214 Ill. 2d at 459-60, 828 N.E.2d at 250-51. One of the arresting officers testified the items recovered from under the vehicleconsisted of "three zip-lock packets each containing a tin foilpacket containing what [he] believed to be heroin." These itemswere inventoried under inventory No. 2550419 and "'standardChicago Police Department procedures'" were followed with regardto inventorying them. Woods, 214 Ill. 2d at 472, 828 N.E.2d at258.
The State presented no further evidence other than astipulation that if the forensic chemist testified, she wouldstate she received inventory No. 2550419 in a sealed conditionand found three packets. She performed tests for ascertainingthe presence of a controlled substance on one packet and found itto contain .1 gram of heroin. She estimated the weight of theremaining two packets to be .2 grams. Defense counsel stipulatedto this testimony. Woods, 214 Ill. 2d at 461, 828 N.E.2d at 251-52.
The court in Woods noted the State bears the burden ofshowing a chain of custody sufficiently complete to make itimprobable the evidence has been subject to tampering or substitution by showing the police took reasonable protective measuresto ensure the substance recovered was the same as the substancetested. Unless a defendant produces evidence of actual tampering, substitution, or contamination, a sufficiently completechain of custody does not require every person in the chain totestify. Woods, 214 Ill. 2d at 467, 828 N.E.2d at 255. Deficiencies in a chain of custody go to the weight and not theadmissibility of evidence. Even where a link is missing in achain of custody, the evidence is properly admitted where testimony sufficiently described the condition of the evidence whendelivered which matched the description of the evidence whenexamined. Woods, 214 Ill. 2d at 467-68, 828 N.E.2d at 255.
The State establishes a prima facie showing a chain ofcustody is sufficient by establishing reasonable protectivemeasures were taken to ensure the evidence was not tampered with,substituted, or altered before testing. The burden then shiftsto the defendant to show there was tampering, alteration, orsubstitution. Woods, 214 Ill. 2d at 468, 828 N.E.2d at 255.
When a defendant challenges the sufficiency of evidence, the relevant inquiry is whether, viewing the evidence inthe light most favorable to the prosecution, any rational trierof fact could have found the essential elements of a crime beyonda reasonable doubt. Woods, 214 Ill. 2d at 470, 828 N.E.2d at257. The Woods court rejected the notion a challenge to theState's chain of custody is a question of the sufficiency of theevidence. Woods, 214 Ill. 2d at 471, 828 N.E.2d at 257.
Because a chain of custody is used to lay a properfoundation for admission of evidence, a defendant's assertion theState presented a deficient chain is a claim the State failed tolay an adequate foundation. A challenge to a chain of custody isan evidentiary issue generally subject to forfeiture if notpreserved by making a specific objection at trial and including aspecific claim in a posttrial motion. Woods, 214 Ill. 2d at 471,828 N.E.2d at 257. The court found the ordinary forfeiture ruleappropriate in a case where a defendant argues the State failedto lay a proper technical foundation for admission of evidencebecause the defendant's lack of a timely and specific objectiondeprives the State of the opportunity to correct any deficiencyat the trial level. Woods, 214 Ill. 2d at 470, 828 N.E.2d at256-57. The court in Woods found the defendant forfeited hischain-of-custody challenge because he did not make any objectionto admission of the evidence at trial, nor did he raise it in hisposttrial motion. Woods, 214 Ill. 2d at 469-70, 828 N.E.2d at256.
The Woods court went on to discuss the fact the defendant entered into a stipulation as to the testimony of thechemist, a part of the chain of custody. The court noted the primary rule in the construction of stipulations is the courtmust ascertain and give effect to the intent of the parties. Woods, 214 Ill. 2d at 468-69, 828 N.E.2d at 256. The court foundfrom the record, the intent of the parties in making the stipulation was to remove any dispute with respect to the chain ofcustody as well as the chemical composition of the substance. The court found it unlikely the State would have agreed tostipulate to the chemist's testimony and forfeit the opportunityto have her describe in detail the packets received from thepolice, how they were received, the condition they were in, andthe tests performed, if the stipulation had not been intended toeliminate the need to defend against a challenge to the chain ofcustody. Likewise, the court found it was reasonable for defensecounsel to forgo the opportunity to cross-examine the expert inorder to focus on other theories of defense. In fact, defensecounsel concentrated on the issue of whether the State provedWoods possessed the substance at issue. Woods, 214 Ill. 2d at474, 828 N.E.2d at 259.
By stipulating to the chemist's report, defense counselplaced the State in the position of believing the sufficiency ofthe chain of custody was not at issue. If defense counsel hadexplicitly stated he was stipulating to the chemist's report butnot the chain of custody, the State would have been afforded theopportunity to remedy the matter in the trial court. Where nochallenge was raised as to the identity of the substance asheroin or with respect to the chain of custody, it was reasonableto conclude the parties intended to remove those issues from thecase and, therefore, there was no dispute as to the admissibilityof the narcotics evidence. The court held Woods affirmativelywaived review of the chain of custody where he agreed to what hesought to challenge on appeal. Woods, 214 Ill. 2d at 475, 828N.E.2d at 259.
Finally, the Woods court found the State established aprima facie showing the chain of custody was sufficiently complete by showing reasonable protective measures were employed toprotect the evidence and it was unlikely it was tampered with. The court found the evidence was sufficient where the policeofficer's testimony, coupled with the stipulation, sufficientlydescribed the condition of the evidence when seized and it matched the description of the evidence when examined. Woods,214 Ill. 2d at 472-73, 828 N.E.2d at 258.
The facts in this case are similar to those in Woods. Defendant did not object to the evidence of the chain of custodypresented by the State nor include the issue in his posttrialmotion. Thus, he has forfeited it on appeal. A challenge to achain of custody raised for the first time on appeal may beproperly considered only if the alleged error rises to the levelof plain error. The plain-error doctrine allows a reviewingcourt to address defects affecting substantial rights if theevidence is closely balanced or if fundamental fairness requires. People v. Donoho, 204 Ill. 2d 159, 187, 788 N.E.2d 707, 724(2003). The plain-error doctrine is not applicable here. Giventhat the jury was entitled to believe the State's evidence, anddefendant admitted possessing contraband, the evidence was notclosely balanced. The case involves no issue of fundamentalfairness because defendant's objection would have permitted theState to resolve the issue at trial.
The State established a prima facie showing the chainof custody was sufficiently complete. Sergeant Schweigharttestified he saw Sergeant Swenson remove a package of suspectedcocaine from defendant's pants pocket on July 3, 2002. InspectorRawdin, a member of Task Force X, testified defendant possessedwhat the lab later determined to be approximately 23 grams ofcocaine when taken into custody. Sergeant Schweighart indicatedState's exhibit No. 1 appeared to be the same item removed fromdefendant's pocket and it was in the same condition as it waswhen Sergeant Swenson removed it. The parties stipulated thatMartin, a forensic scientist with the Illinois State Police,would testify he received State's exhibit No. 1, a sealed evidence bag, from Willie Gartrell of Task Force X. Further, Martinwould testify the analysis of the contents revealed 22.6 grams ofa chunky, white powder containing cocaine. Martin then resealedthe contents and returned it to Gartrell. This testimony sufficiently established a reasonable probability the cocaine was nottampered with or substituted. It was then incumbent on defendantto put forth evidence the cocaine was tampered with or substituted or a mistake occurred.
While Woods is controlling, we do not believe this kindof stipulation ought be the standard to which trial counselshould aspire. The record contains no evidence either by livetestimony or stipulation as to what Sergeant Swenson did with theplastic bag he recovered from defendant. No evidence showed thebag was placed in a closed or sealed container or was initialedor dated by Sergeant Swenson. No evidence showed where the bagwas stored after it was recovered by Sergeant Swenson or when itcame into the possession of Willie Gartrell. From the stipulation, we know Gartrell is "from Task Force X," but we do not knowhow he was involved in this investigation, how the exhibit cameinto his possession, or how he stored the exhibit while it was inhis custody. The stipulation describes the bag as a sealedevidence bag. See Cowans, 336 Ill. App. 3d at 180-81, 782 N.E.2dat 786 (where no evidence showed the items were delivered in aclosed or sealed container). No evidence showed how a bag takenfrom defendant ended up in a sealed evidence bag. No evidenceshowed this bag is different in any way from other bags ofcontrolled substances that may have been handled by the taskforce, or transported to the lab, or stored. No evidence showedthe bag presented as exhibit No. 1 is the same one recovered fromdefendant by Sergeant Swenson. The stipulation clearly resolvesthat what forensic scientist Martin tested was cocaine. Thestipulation does not answer the points raised above.
The State need not present everyone involved in thechain of custody, and we conclude it has met the minimum standardenunciated in Woods. However, a clear chain of custody couldhave been readily established by providing further information onwhat happened to the contraband after it was removed from defendant and prior to it being given to Martin by Gartrell. Bothprosecution and defense could have avoided the issue on appeal ofwhat is included in the stipulation by creating or agreeing upona complete stipulation and making it clear exactly what is to beincluded and what is not, i.e., just the chemist's test resultsor the entire chain of custody.
B. Sufficiency of the Evidence
Defendant also asserts on appeal the evidence wasinsufficient to prove he intended to deliver the cocaine becausethe only evidence of his intent came from the informant, Beals. However, Beals testified he contacted defendant and they hadagreed to meet at Aldi's where defendant was to sell Beals anounce of cocaine. Beals's credibility was called into question,but the jury could have reasonably concluded defendant was atAldi's at the designated time to make a delivery to Beals. Defendant further argues he possessed only 23 grams of cocainerather than a full ounce (28 grams), and thus Beals's testimonywith regard to his agreement with defendant to purchase an ounceof cocaine was not believable.
However, the discrepancy in the amount of cocainebargained for and the amount in defendant's possession goes tothe weight to be given to Beals's testimony. This discrepancydoes not render the jury verdict irrational. See Robinson, 167Ill. 2d at 407, 657 N.E.2d at 1026 (on review, the question iswhether, taking all the evidence in a light most favorable to theState, any rational trier of fact could have found the defendantguilty beyond a reasonable doubt).
C. Abuse of Discretion in Sentencing
Finally, defendant contends the trial court erred insentencing him to 12 years in prison. However, the trial court'sdetermination as to the appropriate sentence will not be disturbed absent an abuse of discretion. People v. Illgen, 145 Ill.2d 353, 379, 583 N.E.2d 515, 526 (1991). A reviewing court maynot reduce a defendant's sentence merely because the reviewingcourt may have weighed applicable factors differently. People v.Fern, 189 Ill. 2d 48, 53, 723 N.E.2d 207, 209 (1999). Defendantwas convicted of a Class X felony for which the court couldimpose a sentence of not less than 6 and not more than 30 years'imprisonment (720 ILCS 570/401(a)(2)(A) (West 2002); 730 ILCS5/5-8-1(a)(3) (West 2002)). The 12-year sentence imposed represents a mid-range sentence. The trial court stated the sentencewas justified as a deterrent, and the court was also awaredefendant violated the conditions of his bond and was a fugitiveat the time of this trial and sentencing. Although defendantargues the trial court failed to consider factors in mitigation,the court noted defendant's minimal criminal history and that hisconduct was facilitated or induced by another. Thus, the recordreflects the trial court did consider factors in mitigation, andtherefore the court did not abuse its discretion in imposingsentence.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court'sjudgment.
Affirmed.
APPLETON, J., concurs.
TURNER, P.J., specially concurs.
PRESIDING JUSTICE TURNER, specially concurring:
As indicated by the majority, we were ordered to vacatethis court's decision in People v. Echavarria, No. 4-02-1027(December 22, 2004) (unpublished order under Supreme Court Rule23), reversing defendant's conviction. I dissented in thatorder, indicating I would find defendant had forfeited his chain-of-custody argument on appeal based upon defense counsel'sconcession defendant possessed cocaine, the stipulation presented, the lack of objection to either foundation or chain ofcustody, and defendant's new theory of innocence asserted for thefirst time on appeal. Notwithstanding forfeiture, I also indicated I would find the State provided a sufficient foundation forthe admissibility of the package of cocaine. On reconsideration,the majority affirms defendant's conviction and sentence, and Inow specially concur.
The majority correctly affirms defendant's convictionbased upon the authority of Woods. The majority also correctlysets forth the holding and rationale of Woods. Having done so,the majority nonetheless criticizes the stipulation for itsexiguous detail. Slip op. at 13-14. However, without an objection from defense counsel as to any alleged deficiencies, theState is entitled to rely upon the stipulation agreed to by theparties. See Woods, 214 Ill. 2d at 475, 828 N.E.2d at 259 (theState would believe the sufficiency of the chain of custody wasnot at issue when defense counsel stipulates to the report andfails to raise the issue at trial). Morever, as the supremecourt stated in Woods,
"In the context of the entire record, itis apparent that the intention of the parties' agreement to stipulate to the chemist'stestimony in a summary and brief mannerserved to remove from this case any disputewith respect to the chain of custody or thechemical composition of the recovered substance." Woods, 214 Ill. 2d at 474, 828N.E.2d at 259.
The same can be said in this case.