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SIXTH DIVISION
August 27, 2004

No. 1-03-1155

 

Respondent Eric B., a minor, was adjudicated delinquent for possession of a controlledsubstance. He was committed to the Illinois Department of Corrections Juvenile Division for anindeterminate sentence. On appeal, respondent challenges the sufficiency of the evidence andcontends that the State failed to establish a proper chain of custody over the controlled substance. Respondent also contends that the trial court improperly dismissed his pro se posttrial motion allegingineffective assistance of counsel. For the following reasons, we affirm.

The following facts were adduced at respondent's adjudication hearing. On October 9, 2002,at approximately 9:50 p.m., Chicago police officers Joseph Ferenzi and Bojan were patrolling the areanear Madison Street and Long Avenue in Chicago. Officer Ferenzi exited his vehicle and set up anarcotics surveillance in an area where he had made previous narcotics arrests. With an unobstructedview and from about 100 to 150 feet away, Officer Ferenzi observed, on three separate occasions,unknown individuals approach respondent and tender money to him. Respondent then walked alonga fence over to a crumpled paper bag on the ground which was about 10 to 15 feet away. Respondent picked up the paper bag, removed a small item and then tendered the item to theindividual who had just given him the money. Officer Ferenzi observed three or four additionalpeople standing near respondent who were not involved in the suspected narcotics transactions.

Officer Ferenzi radioed Officer Bojan and other enforcement officers to detain respondent. Once respondent was detained, Officer Ferenzi directed Officer Bojan, via radio, over to the balled-uppiece of paper on the ground. Officer Bojan recovered five tinfoil packets of suspected heroin. Officer Bojan testified that he did not observe any other pieces of paper in the immediate area.

According to Officer Bojan's testimony, the tinfoil packets were in his continuous care andcustody until he inventoried them. The officers also recovered $65 during a subsequent custodialsearch of respondent.

Thereafter, the parties entered the following stipulation in full:

"That Officer Bojan inventoried, recovered contraband under number10040499, that the chain of custody was at all times properly kept andreserved on record and inventoried under number 1004099 [sic], thatNancy McDonaghs would be qualified to testify as an expert to renderan expert opinion within a reasonable degree of scientific certainty inthe field of forensic chemistry, that said expert did analyze and weighthe evidence inventoried as indicated above completely employingtests and procedures commonly recognized and accepted in thescientific community for ascertaining the presence of a controlledsubstance; that the evidence in this case tested positive for heroin, thatthe total estimated weight of 0.8 grams from the 5 items total weighttested 0.1 gram from 1 item."

Respondent testified at trial, which took place in March 2003, that he was 16 years old.Respondent denied possessing any drugs. According to his version of the events leading up to thearrest, respondent and his friends Derrick Hayes and Lekesha Crawford were walking to a fast-foodrestaurant when they were approached by two officers. Although the officers eventually allowedCrawford and Hayes to leave, they detained and searched respondent. Respondent explained that hismother had given him the $65 recovered during the search. Respondent testified that he did not knowthe reason for his arrest until he reached the police station.

Following the close of evidence, the trial court adjudicated respondent delinquent forpossession of a controlled substance. The trial court, in announcing its decision, specifically statedthat respondent's testimony "makes no sense" and that it found the testimony of Officers Ferenzi andBojan to be credible. The trial court then sentenced respondent to the juvenile division of theDepartment of Corrections.

Immediately after the court imposed the sentence, the following colloquy took place betweenthe court, respondent, and defense counsel:

"MINOR RESPONDENT: My brother could have told you.

THE COURT: There was a trial in this case.

MINOR RESPONDENT: I didn't get a chance to call nobody[sic].

THE COURT: You're trying to tell me your lawyer didn't tellyou to give her the names of your witnesses?

MINOR RESPONDENT: No, Ma'am."

The court subsequently informed respondent of his appeal rights and instructed him to include all ofthe "mistakes" in his appeal. The court then proceeded to engage in the following discussion withrespondent:

"MINOR RESPONDENT: They put some dope on my case. I got a charge on there I know it's my brother's work. I know for afact I don't work this type of drug.

THE COURT: I know for a fact you sat right over there atthat table while this trial was going on.

MINOR RESPONDENT: I did, but I didn't bring his name upbecause I know no one was going to believe me.

THE COURT: *** I have a suspicion the record will reflectthat I gave [respondent] the opportunity during the course of the trialto get up and get on the witness stand and tell his story. If at thatpoint in time he decided he didn't want to tell on his brother and herather [sic] take this weight himself, it is not my job to try to talkabout what happened between him and his lawyer.

* * *

[DEFENSE COUNSEL]: For the record, if I may, onFebruary 11th when this matter was up before the court this matterwas set for trial on March 12. I gave [respondent] a letter that wekeep here with a next court date with my number on it. I told him tocall me if he had any additional inquiries.

* * *

THE COURT: If the lawyer gave him a letter saying call mewith the names of your witnesses he should have done that.

MINOR RESPONDENT: I got that in my pocket.

THE COURT: He got the letter. He has it he says. Youheard him. I got that letter in my pocket. The lawyer gave him aletter saying here's my number, call me, give me the names of yourwitnesses. That's what her job is. Now, if [respondent] clubbed that,that's not gonna be easy to lay at the foot of a lawyer. He was here. He was given the opportunity to testify. Now he says you [sic] didn'twant to do that because I didn't want to tell on my brother."

Prior to terminating the proceedings, the trial court again noted that respondent chose not to providethis version of the events when he had the opportunity to do so at trial.

On appeal, respondent first contends that the State failed to prove him guilty beyond areasonable doubt because it failed to establish a proper chain of custody over the recovered narcotics. The State, however, argues that respondent's failure to raise this issue at trial and in a posttrialmotion results in waiver.

A defendant is generally precluded from attacking any facts to which he previously stipulated. See People v. Gibson, 287 Ill. App. 3d 878, 880 (1997). However, where, as here, a defendant doesnot attack the specific facts agreed to, but instead argues that the stipulated facts failed to a establisha complete chain of custody, the challenge goes to the sufficiency of the evidence. See People v.Cowans, 336 Ill. App. 3d 173, 175 (2002). A challenge to the sufficiency of the evidence is notsubject to the waiver rule and may be raised for the first time on appeal. Cowans, 336 Ill. App. 3dat 176.

The relevant inquiry for a sufficiency of the evidence claim is whether, after viewing theevidence in the light most favorable to the State, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt. People v. Cox, 195 Ill. 2d 378, 387(2001).

Before the State may admit contraband at trial, it must establish " 'a chain of custody ofsufficient completeness to render it improbable that the [evidence] has been tampered with,exchanged, or contaminated.' " Gibson, 287 Ill. App. 3d at 881, quoting People v. Terry, 211 Ill.App. 3d 968, 973 (1991). The State must also show that the police took reasonable protectivemeasures to ensure that the recovered substance was the same as that tested by the forensic chemist,which includes proof of delivery, presence, and safekeeping. People v. Moore, 335 Ill. App. 3d 616,620 (2002). In the absence of actual evidence of tampering, substitution, or contamination, the Stateis not required to exclude every possibility of tampering or contamination but, rather, need only showthat reasonable measures were employed to protect the evidence from the time that it was seized. People v. Fox, 337 Ill. App. 3d 477, 481 (2003), citing People v. Bynum, 257 Ill. App. 3d 502, 510(1994).

In the instant case, the record establishes that Officer Bojan found five tinfoil packets ofsuspected heroin in a crumpled paper bag from which respondent had retrieved certain items. OfficerBojan testified that the items remained in his continuous care and custody until he inventoried themunder inventory number 10040499. Thereafter, the parties stipulated that "the proper chain ofcustody was at all times properly kept." The parties further stipulated that a qualified forensicscientist, Nancy McDonaghs, would testify that she analyzed the five items inventoried under thatsame inventory number, 10040499, and that the evidence tested positive for heroin. Based on thestipulation and the evidence presented at trial, the State established a proper chain of custody for thecontrolled substance and the evidence was sufficient to sustain the finding of guilt.

Respondent nevertheless maintains that, because he only stipulated that a proper chain ofcustody had been maintained up until the time that Officer Bojan inventoried the items, and notthereafter, the State failed to establish a complete chain of custody. The parties here, withoutqualification, agreed to language that provided that a proper chain of custody was kept "at all times." Had it not been respondent's intention to agree to that fact, it would have been in his best interestsnot to agree to the stipulation. See People v. Washington, 343 Ill. App. 3d 889, 901 (2003), quotingPeople v. Rucker, 346 Ill. App. 3d 873, 892 (2003) (as applied to stipulation of foundation forexpert's testimony).

We find that the stipulation means exactly what it said, i.e., "the chain of custody was at alltimes properly kept." (Emphasis added.) In reaching our conclusion, we have considered the casescited by respondent; however, they are fundamentally different. Unlike the present case, in Cowans,Gibson, Moore, and People v. Lundy, the stipulations agreed to by the parties did not even mentionthe chain of custody. See Cowans, 336 Ill. App. 3d at 177; Gibson, 287 Ill. App. 3d at 879-80;Moore, 335 Ill. App. 3d at 619; People v. Lundy, 334 Ill. App. 3d 819, 827 (2002).

The stipulation in the instant case not only provided that "the chain of custody was at all timesproperly kept," but further demonstrated by stipulation that the forensic chemist would be qualifiedto testify as an expert witness and render an expert opinion. The parties entered the followingstipulation in full:

"That Officer Bojan inventoried, recovered contraband under number10040499, that the chain of custody was at all times properly kept andreserved on record and inventoried under number 1004099 [sic], thatNancy McDonaghs would be qualified to testify as an expert to renderan expert opinion within a reasonable degree of scientific certainty inthe field of forensic chemistry, that said expert did analyze and weighthe evidence inventoried as indicated above completely employingtests and procedures commonly recognized and accepted in thescientific community for ascertaining the presence of a controlledsubstance; that the evidence in this case tested positive for heroin, thatthe total estimated weight of 0.8 grams from the 5 items total weighttested 0.1 gram from 1 item."

Unlike the instant case, the stipulation in Cowans never mentioned the chain of custody andfailed to provide stipulated evidence that the forensic chemist would be qualified to testify as anexpert witness. The parties in Cowans entered the following stipulation in full:

" 'Also, that if Maureen Duffy, a forensic scientist employedby the Illinois State Police Division of Forensic Services were to becalled, she would testify that on February 7, 2000, she received thefollowing inventory number, 2295494, which contained nine items,and that she tested five of those nine items and that she hasdetermined that-with a reasonable degree of scientific certainty thatthe five tested items tested positive for 1.2 grams of cocaine.' "Cowans, 336 Ill. App. 3d at 177.

Moreover, in the instant case, the testimony of Officer Bojan provided additional evidenceregarding care, custody, and safekeeping demonstrating a proper chain of custody. Officer Bojantestified as follows:

"[THE STATE]: When you went over to the fence, what didyou do?

[THE OFFICER]: I picked up a balled up piece of paper,opened that balled up piece of paper, and found that it contained 5-tin-foil packets of suspect heroin.

[THE STATE]: And, officer, did you observe any other piecesof paper besides that one that you picked up?

[THE OFFICER]: Not in that immediate area, no.

[THE STATE]: And, officer, what if anything did you do afteryou observed the 5 packets within that piece of paper?

[THE OFFICER]: The minor was placed into custody.

[THE STATE]: And then what did you do?

[THE OFFICER]: As we brought the narcotics back to the15th district, I inventoried those suspect narcotics.

[THE STATE]: And, officer, was the suspect narcotics [sic]in your continuous care and custody from the time you recovered ituntil the time you inventoried it?

[THE OFFICER]: Yes, it was.

[THE STATE]: And did you, in fact, inventory the suspect

narcotics along with the piece of paper under inventory number10040499?

[THE OFFICER]: Yes."

In Cowans, the officer's testimony provided no evidence regarding the continuous care andcustody of the suspect narcotics. Officer McCarthy testified in Cowans as follows:

" '[THE STATE]: And did you inventory the nine, clearbaggies containing the suspect rock cocaine under inventory number2295494?

[THE OFFICER]: Yes.' " Cowans, 336 Ill. App. 3d at 177.

Unlike the instant case, in Cowans, the stipulation and the live testimony failed to even mention thechain of custody. We reject defendant's challenge to the chain of custody. Contrary to defendant'sargument that he only stipulated that a proper chain of custody had been maintained up until the timethat Officer Bojan inventoried the narcotics, the stipulation provided "the chain of custody was at alltimes properly kept." The additional testimony of Officer Bojan that the narcotics were in his"continuous care and custody" further supported that stipulation.

Respondent next contends on appeal that the trial court failed to conduct an adequateinvestigation into his pro se allegations of ineffective assistance of counsel. Respondent thereforeasserts that a remand is necessary so that the trial court may conduct a preliminary investigation ofhis ineffective assistance claim.

New counsel is not automatically required where a defendant raises allegations of ineffectiveassistance of counsel by way of a pro se posttrial motion. People v. Munson, 171 Ill. 2d 158, 199(1996). Rather, when a defendant presents a pro se posttrial claim of ineffective assistance ofcounsel, the trial court should first examine the factual basis of the defendant's claim. If the trialcourt determines that the claim lacks merit or pertains only to matters of trial strategy, new counselneed not be appointed, and the trial court may deny the motion. People v. Moore, 207 Ill. 2d 68, 77-78 (2003). Furthermore, where a trial court's inquiry into the defendant's allegations reveal that theyare conclusory, misleading, legally immaterial, and do not present a colorable claim of ineffectiveassistance of counsel, the court need not conduct further inquiry into the allegations. See People v.Johnson, 159 Ill. 2d 97, 128 (1994). Thus, the key concern on review is whether the trial courtconducted an adequate inquiry into the defendant's pro se allegations of ineffective assistance ofcounsel. Johnson, 159 Ill. 2d at 125.

Where the record here establishes that the trial court elicited the allegation that defensecounsel never told respondent to provide her with the names of witnesses (see People v. Chapman,194 Ill. 2d 186, 228-29 (2000)) and further explored the validity of that allegation by discussing theunderlying facts of the claim of possible neglect with both respondent and defense counsel (seeMunson, 171 Ill. 2d at 202-03), a remand is not required. Contrary to respondent's assertion, thetrial court here made a significant effort to explore his claim of ineffective assistance of counsel. Therecord establishes that the court provided respondent with an opportunity to explain the basis for hisclaim and only after inquiry into that claim with both respondent and defense counsel did the trialcourt determine that the claim lacked merit. Notably, the trial court expressly pointed out the factthat respondent had ample opportunity to present his story when he took the stand, and, due to nofault of his counsel, chose not to do so. Accordingly, the trial court conducted a proper inquiry intorespondent's claims and did not err in failing to appoint new counsel.

For the reasons stated, we affirm the judgment of the circuit court.

Affirmed.

TULLY and FITZGERALD SMITH, JJ., concur.