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SIXTH DIVISION

December 6, 2002

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a bench trial defendant was found guilty of one count of possession of a controlledsubstance with intent to deliver. The trial court sentenced defendant to seven years in the IllinoisDepartment of Corrections. On appeal, defendant challenges the sufficiency of the evidence andcontends the stipulated facts, together with the entire trial record, fail to establish a complete chainof custody for the controlled substance.

The State called Officer McCarthy as a witness and introduced additional evidence throughtwo stipulations. McCarthy testified that around 9:45 p.m. on January 22, 2000, near 4936 WestHuron Street, he observed defendant with the aid of binoculars. During a five-minute surveillanceMcCarthy saw four individuals approach defendant, engage in a brief conversation, and givedefendant money. Defendant placed the money in his pants pocket and gave a small object to eachindividual. When McCarthy was about 15 feet away, defendant looked in his direction and threwa number of small plastic bags to the ground. McCarthy recovered from the ground nine smallplastic bags containing what he suspected to be cocaine. Defendant was arrested. McCarthysearched defendant and recovered $190 from his pants pocket. McCarthy testified that he laterinventoried the nine small plastic bags under inventory number 2295494 and the money underinventory number 2295495. The Nash School was located about one block away.

The State offered two stipulations agreed to by defense counsel. By way of stipulation it wasagreed that if Investigator Tansy were to testify he would state that he measured the distance from4936 West Huron Street to the Nash School and found it was 742 feet. It was further stipulated thatif forensic scientist Maureen Duffy were to testify she would state that she received nine items underinventory number 2295494 and tested five of the nine items, which she found contained 1.2 gramsof cocaine.

Defendant and Lonniece Young-Frazier testified in the defense case. Frazier testified thatshe knows defendant, but does not know him personally. On January 22, 2000, between 9 p.m. and 10 p.m., she was a passenger in a car in front of 4935 West Huron Street. She saw the defendantwalking westbound on the north side of Huron Street when two uniformed officers, a male andfemale, approached him. Defendant put his hands up in the air. Frazier testified that she did not seedefendant drop anything on the ground and did not see anyone passing objects for money. Shetestified that the officers searched defendant, handcuffed him, and placed him in the police car. Frazier testified that the male officer had a flashlight and was looking on the ground all over the area,including under porches two or three houses away.

Defendant testified that he was walking home from the store after playing the lottery. He wason the north side of Huron Street. Officer McCarthy and a female police officer pulled up in amarked squad car. Defendant denied he had anything in his hands or dropped anything; he deniedselling drugs or possessing any drugs. Defendant stated that McCarthy searched him, found money,and told the female officer that defendant must be doing something. Defendant was handcuffed andplaced in the squad car. McCarthy searched the area with a flashlight. Defendant testified that whenMcCarthy got into the car he showed defendant a plastic pouch and then drove to the police station.

Defendant stipulated to certain facts at trial. Generally, a defendant is precluded fromattacking any facts previously agreed to in a stipulation. Defendant does not attack the specific factsagreed to in the stipulation. Defendant, relying on In re R.F., 298 Ill. App. 3d 13, 16 (1998),challenges the sufficiency of the evidence and argues that the stipulated facts, together with the entiretrial record, fail to establish a sufficiently complete chain of custody.

When a defendant challenges the sufficiency of the evidence, the relevant inquiry is whether,after viewing the evidence in the light most favorable to the prosecution, any rational trier of factcould have found the essential elements of the crime beyond a reasonable doubt. Jackson v.Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89 (1979); People v.Cox, 195 Ill. 2d 378, 387 (2001). A challenge to the sufficiency of the evidence is not subject to thewaiver rule and may be raised for the first time on direct appeal. People v. Enoch, 122 Ill. 2d 176(1988).

Before real evidence may be admitted at trial, the State must provide an adequate foundation either by way of live testimony or stipulation which establishes that the item sought to be introducedis the actual item involved in the alleged offense and that its condition is substantially unchanged. People v. Cole, 29 Ill. App. 3d 369, 375 (1975). Where an item possesses unique and readilyidentifiable characteristics and its substance is relatively impervious to change, testimony at trial thatthe item sought to be admitted in evidence is the same one recovered and in substantially the samecondition as when recovered is sufficient to establish an adequate foundation. People v. Gilbert, 58Ill. App. 3d 387, 384 (1978). If the item is not readily identifiable or if it is susceptible to alterationby tampering or contamination, its chain of custody must be established by the State with sufficientcompleteness to render it improbable that the original item has either been exchanged, contaminated,or subjected to tampering. People v. Winters, 97 Ill. App. 3d 288, 289 (1981).

The character of the item determines which method for laying an adequate foundation mustbe used. People v. Graves, 107 Ill. App. 3d 449, 454 (1982). Based on the character of the evidencein this case, the chain of custody must be established by the State with sufficient completeness torender it improbable that the original item has either been exchanged, contaminated, or subjected totampering. Thus, the State was required to establish a chain of custody to demonstrate theconnection between the items recovered from the ground by Officer McCarthy after discarded bydefendant and the items tested by forensic scientist Maureen Duffy.

Regarding that connection, the record contained the testimony of Officer McCarthy and thestipulated testimony of forensic scientist Maureen Duffy. The testimony of Officer McCarthy ondirect examination by the State regarding recovering and handling the controlled substance was asfollows:

"Q. What happened as you were approaching the defendant?

A. He looked in my direction, and he threw to the groundnumerous plastic bags. I recovered these bags and found them to benine clear, plastic bags each containing white, rocky substance that Ibelieved to be crack cocaine.

***

Q. Officer, did you later inventory the U.S. currency and thesuspect rock cocaine?

A. Yes.

***

Q. And did you inventory the nine, clear baggies containingthe suspect rock cocaine under inventory number 2295494?

A. Yes."

On cross-examination McCarthy testified as follows:

"Q. And you were 15 feet away from him, and that's when hethrew these things down on the ground?

A. I said approximately 15 feet.

Q. And could you see then what those things were?

A. I could tell they were, at least, clear, plastic bags.

Q. Were they tinted at all?

A. Yes.

Q. What color tint?

A. Green."

The agreed stipulation between the State and defense regarding the testimony of forensicscientist Duffy was as follows:

"[711 LAW CLERK FOR THE STATE]: Also, that ifMaureen Duffy, a forensic scientist employed by the Illinois StatePolice Division of Forensic Services were to be called, she wouldtestify that on February 7, 2000, she received the following inventorynumber, 2295494, which contained nine items, and that she testedfive of those nine items and that she has determined that - with areasonable degree of scientific certainty that the five tested itemstested positive for 1.2 grams of cocaine. So stipulated?

[DEFENSE ATTORNEY]: Yes."

The testimony of Officer McCarthy and the stipulation regarding the testimony of forensic scientistDuffy was in total the evidence produced by the State regarding chain of custody.

In order to prove its case, the State is required to prove a connection between the defendantand the illegal contraband. In doing so the State is required to establish a proper chain of custody. A sufficient chain of custody does not require that every person involved in the chain testify, normust the State exclude all possibilities that the evidence may have been subject to tampering. Winters, 97 Ill. App. 3d at 295. The State must demonstrate that the evidence has not been changedin any important respect. People v. Hominick, 177 Ill. App. 3d 18, 29 (1988). The State is requiredto establish that it took reasonable protective measures since the substance was seized. People v.Hermann, 180 Ill. App. 3d 939, 944 (1988). The purpose of the protective measures is to ensure thatthe substance taken from the defendant was the same as the substance tested by the forensic chemist. People v. Ryan, 129 Ill. App. 3d 915, 919 (1984).

We are mindful that unless the defendant produces actual evidence of tampering, substitution,or contamination, the State need only establish a probability that tampering, substitution orcontamination did not occur, and any deficiencies go to the weight rather than the admissibility ofthe evidence. Hominick, 177 Ill. App. 3d at 29. In the instant case, defendant did not produce actualevidence of tampering, substitution, or contamination. Therefore, the State is only required toestablish a probability that reasonable protective measures were employed to protect the evidencefrom the time it was seized and that it was improbable the evidence was altered. People v. Bynum,257 Ill. App. 3d 502, 510 (1994). To establish a sufficiently complete chain of custody, the Stateis required to prove delivery, presence, and safekeeping of the evidence. People v. Gibson, 287 Ill.App. 3d 878, 882 (1997).

The State, relying on People v. Irpino, 122 Ill. App. 3d 767 (1984), contends that the chainof custody was sufficiently established in this case because the "testimony clearly demonstrated thatthe evidence seized 'matched' the evidence subjected to chemical analysis." We recognize that if onelink in the chain is missing, but there is evidence describing the condition of the evidence whendelivered which matches the description of the evidence when examined, the evidence can besufficient to establish chain of custody. Irpino, 122 Ill. App. 3d at 775.

Officer McCarthy testified he recovered from the ground nine small plastic bags with a greentint that contained suspected crack cocaine after being discarded by the defendant. The recordreflects by way of stipulation that the forensic scientist received nine items and tested the contentsof five items, which she found to contain 1.2 grams of cocaine. The officer's description includesdetails about the color, shape and packaging of the items, but not the weight. The forensic scientist'sstipulation contains no corresponding details about the color, shape and packaging of the items. Theforensic scientist's stipulation includes a weight estimate, but in no way further describes the items.

Here, the only common features in the testimony describing the condition of the evidencewhen seized and the description of the evidence when tested are the number of items and theinventory number. The stipulation of the testimony provided by the forensic scientist did not includewhether the items she received were in plastic bags or whether the bags were colored or clear. Thestipulation of the testimony provided by the forensic scientist did not include any description as tosize, shape, or color of the items received. Officer McCarthy described the evidence as a white,rocky substance. However, there was no corresponding or "matching" description provided by theforensic scientist in the stipulation as to the shape and color of the substance. While there wasevidence that the nine plastic bags retrieved from the ground by Officer McCarthy were distinctivein color, that distinctive color was not included in the description of the items tested by the forensicscientist provided by the State's stipulation. Rather, the stipulation referenced the evidence by useof the generic term "items." The "items" received by forensic scientist Duffy were given no furtherdescription in the stipulation.

As noted, where there is evidence describing the condition of the evidence when seized,which matches the description of the evidence when examined, the evidence can be sufficient toestablish chain of custody. Irpino, 122 Ill. App. 3d at 775. For the reasons previously discussed, wecannot conclude that the record reflects the condition of the evidence when seized sufficientlymatches the description of the evidence when tested. This gap in the chain of custody is not resolvedby the record.

Moreover, the record reflects several additional missing links in the chain of custodyregarding proof of handling, delivery, presence, and safekeeping of the evidence. To establish asufficiently complete chain of custody, the State is required to prove delivery, presence, andsafekeeping of the evidence. Gibson, 287 Ill. App. 3d at 882. The record reflects no reasonableprotective techniques regarding custody, handling, delivery, presence, and safekeeping of the allegedcontraband. The State presented no evidence of what procedures, if any, were used in the handlingand safekeeping of the evidence between Officer McCarthy's recovery of the plastic bags and thereceipt of the evidence by forensic scientist Duffy 16 days later. The record contains no evidenceeither by live testimony or stipulation as to what Officer McCarthy did with the plastic bags heretrieved from the ground after defendant allegedly discarded them, other than the fact that McCarthyinventoried those items under an inventory number. There is no evidence that the plastic bagsrecovered from the ground from Officer McCarthy were placed in any closed or sealed container orenvelope or were initialed or dated by Officer McCarthy; no evidence as to what condition the itemswere kept in during the 16 days that passed before forensic scientist Duffy received them; noevidence that the items received at the crime laboratory were received sealed; and no evidence of thewhereabouts of the plastic bags for the 16 days that passed from the time Officer McCarthyrecovered the plastic bags on January 22, 2000, and February 7, 2000, when forensic scientist Duffyreceived the items.

Regarding chain of custody, the State relies on People v. Leemon, 66 Ill. 2d 170, 172 (1977),and argues "the court held in Leemon that the police officer's testimony identifying the bag herecovered from the defendant, together with a stipulation between the parties that the contents of thebag were LSD, made a sufficient showing of continuity of possession of custody." In Leemon, Officer Edwards described the bag of LSD he purchased from defendant which he had marked withthe date and his initials. That plastic bag containing LSD was received in evidence. Unlike Leemon,the record in this case contains no testimony by Officer McCarthy during trial identifying the baggieshe recovered from the defendant, either in the form of live testimony or by way of stipulation. Thereis no evidence that Officer McCarthy marked the baggies with the date and his initials. In Leemon,the plastic bag containing LSD recovered by the police officer from the defendant was received inevidence. Unlike Leemon, in the instant case the baggies containing the controlled substancerecovered by Officer McCarthy were not offered into evidence by the State or received into evidenceby the court either through live testimony or by way of stipulation. The controlled substance in thiscase was never given an exhibit number. Here, the State not only failed to provide an adequatefoundation to introduce the contraband into evidence, but it never sought to introduce into evidencethe controlled substance either by live testimony or stipulation.

As previously noted, the State must provide an adequate foundation demonstrating the itemsought to be offered into evidence is the actual item involved in the alleged offense and its conditionis substantially unchanged. McCarthy never identified the narcotics as those retrieved after beingdiscarded by defendant nor did the State establish that fact by way of stipulation. McCarthy nevertestified that, at the time of trial, the controlled substance was in substantially the same condition aswhen he inventoried it, nor did the State establish that fact by way of stipulation. The record reflectsno evidence by way of live testimony or stipulation that the items recovered by McCarthy weresubstantially unchanged from the time of the offense to the time of trial. The record contains noevidence either by live testimony or stipulation that Officer McCarthy would identify the items testedby Duffy and would testify that these items were in the same or substantially the same condition aswhen he recovered these items from the ground after they were allegedly discarded by defendant onJanuary 22, 2000. These gaps in the chain of custody are not resolved by the record.

There are additional gaps in the chain of custody. There is no evidence either by way ofdirect testimony or stipulation regarding delivery of the items to the crime laboratory. Thestipulation indicates the items were received on February 7, 2000. However, there is no evidencein the record as to where those "items" were for 16 days from January 22, 2000, until February 7,2000. There is no testimony, live or stipulated, describing the condition of the items when deliveredto the crime laboratory. There is no evidence the items were delivered in a closed or sealedcontainer. There is no evidence of any protective measures the State took from the point thesubstance was recovered by Officer McCarthy until the point the items were received 16 days laterat the crime laboratory by

forensic scientist Duffy.

Reversal for evidentiary insufficiency is required when the State fails to prove its case. Asrecently noted in People v. Moore, "When the issue is one which concerns the sufficiency of theevidence, we are required to reverse outright, whereas the erroneous admission of evidence is aprocedural error which allows us to remand for a new trial." People v. Moore, No. 1-01-2143, slipop. at 11 (November 15, 2002), citing People v. Olivera, 164 Ill. 2d 382, 393 (1995). In this case,defendant challenges the sufficiency of the evidence. There is no issue regarding the erroneousadmission of the controlled substance, because the State never sought to admit the controlledsubstance either by live testimony or stipulation.

Moreover, in this case there is no challenge to the stipulated facts and no contention that thestipulations were misstated. See People v. Maurice, 31 Ill. 2d 456, 457-59 (1964) (where stipulationwas misstated, court concluded admission of heroin into evidence without sufficient chain of custodyrequired reversal and remand for new trial). Rather, in the instant case, the defendant challenges thesufficiency of the evidence and argues that the stipulated facts, considered together with the entiretrial record, fail to establish a sufficiently complete chain of custody. See In re R.F., 298 Ill. App.3d at 15 (insufficient foundation provided by State for admission of controlled substance requiredoutright reversal).

The evidence was insufficient to sustain defendant's conviction because the State failed toestablish a sufficient chain of custody for the controlled substance. The State failed to demonstratethat the police took reasonable protective measures to ensure that the substance recovered by OfficerMcCarthy from the ground after abandoned by defendant was the same or substantially the same asthe items tested by forensic chemist Duffy. There was no evidence regarding the handling andsafekeeping of the controlled substance from the point in time when Officer McCarthy recovered theevidence until the point in time when forensic scientist Duffy received the evidence 16 days later.

Other than the testimony of Officer McCarthy that he inventoried the evidence underinventory number 2295494, the only other evidence offered to prove the chain of custody was thestipulation, which merely established that Duffy tested five of nine "items" assigned to inventorynumber 2295494, which tested positive for 1.2 grams of cocaine. The State failed to establish asufficiently complete chain of custody by proof of delivery, presence and safekeeping of thecontrolled substance. The State failed to establish a probability that reasonable measures were usedto protect the evidence from the time that it was seized and that it was improbable the evidence wasaltered.

For the reasons previously discussed, we find the evidence was insufficient to provedefendant guilty beyond a reasonable doubt.

Reversed.

O'BRIEN, P.J., and GALLAGHER, J., concur.