Find Legal Information

June 29, 2001

No. 1-99-0742

Following a jury trial, Hector Herrero was convicted ofpossession of a controlled substance with intent to deliver. Hewas sentenced to 25 years in prison and now appeals thatconviction. We affirm the conviction and remand it solely for arecalculation of a proper credit for time served on the mittimusfor the following reasons.

BACKGROUND

On September 9, 1997, the Chicago police received a tip froma confidential informant that a substantial amount of cocainewould arrive in the area of Kostner and Armitage, hidden in a redBuick. Based upon this tip, the police began their observationof the area.

Officer Loretta Huberts and her partner, Officer MannyColon, were parked, watching the area under surveillance. Herrero arrived in a silver Honda and waited until a red Buickpulled up and parked in front of 4404 West Armitage in Chicago. Reinaldo De Jesus emerged from the red Buick and walked towardHerrero. De Jesus handed keys to Herrero and kept walking downthe street to stand in front of 4400 West Armitage. Herrero wentto the red Buick, opened up the passenger side door with a key,got in and slid over to the driver's side. Herrero then turnedon the ignition, depressed the brakes, and activated the leftturn signal. He then dipped below the dashboard, out of view ofthe officers. He then closed the driver's side door, reachedback, then got out of the car carrying a white plastic bag in hisright hand. The bag was described by Huberts as "brick shaped[,]*** white and very transparent like one of those little shoppingbags they give you at the grocery store *** and it was wrappedtightly around it." Officer Manny Colon described the same bagas a "white plastic bag which was like transparent type, morelike one of those Jewel type or grocery type bags, rectangular." Colon also described the way Herrero was holding the bag as "likeif it were a book." Both Huberts and Colon testified that, basedon their experience in narcotics investigations, they thought theplastic bag contained a kilo of cocaine.

Herrero took the plastic bag and walked toward 4400 WestArmitage. He and De Jesus went into the building. After a fewminutes inside, Herrero emerged from the building and returned tothe passenger side of the Buick. He then put the plastic bag inthe car, shut the door and returned to De Jesus.

The police approached Herrero and De Jesus on foot. Theyidentified themselves as police and told Herrero and De Jesusthey were under investigation for possession of cocaine. Thepolice asked Herrero to sign a consent form so they could searchthe silver Honda. He signed the form. Sometime after Herrerosigned the form, more police arrived with Roxy, a drug-sniffingdog. The dog sniffed the silver Honda but did not alert onanything. Roxy was then allowed to sniff the red Buick, and thedog alerted. After Roxy alerted, the police decided to get asearch warrant for the vehicle. The red Buick was impounded andtaken to a police station.

Once the vehicle arrived, Officer Huberts attempted toreproduce the movements Herrero made in the car. When nothinghappened, the police inspected under the dashboard. There weretwo little holes on the driver's side under the dashboard. Theyfound a rat-tail comb stuck in the visor, the tail of which fitin the holes. Upon insertion of the comb, two traps popped open. On the passenger side, police found the white plastic bag Herrerohad carried. It contained a kilo of what appeared to be cocaine.There were three more kilos of what appeared to be cocaine inthat trap and three more kilos in the driver's side trap. All ofthe kilos except the one in the plastic bag bore emblems on themthat looked like little pumpkins. Officer Huberts inventoriedall the evidence found in the traps and personally carried itdown to the crime lab for testing. When she got the evidence tothe crime lab, Huberts testified she watched as the evidence wasrepackaged into boxes because they did not fit into evidenceenvelopes. She indicated the crime lab personnel made her sealand initial the boxes. The crime lab people then gave her tworeceipts for the boxes.

The individual brick from the plastic bag carried by Herrerowas inventoried with evidence number 1865259 while the remainingbricks bearing the "pumpkin" emblems were inventoried togetherand given the evidence number 1865258. In addition to thesuspected drugs recovered, the police collected pagers, cellulartelephones, money, identification and various other items fromHerrero and his codefendant, De Jesus. The wrappings from someof the kilos were sent for latent print analysis, saidexamination revealing no such latent prints.

During the trial, Officer Thomas Jones of the assetforfeiture unit of the Chicago police testified over objectionthat the Buick had been sold after being forfeited in anuncontested administrative forfeiture proceeding. In overrulingthe objection, the trial court stated, "we might be getting tothe good stuff now." Jones then testified that an administrativeforfeiture had taken place.

Testimony was also heard from Jaime Zea of the IllinoisState Police Crime Laboratory. Zea is a level-three forensicscientist who tested the evidence. Zea identified evidencelabeled as evidence inventory numbers 1865258 and 1865259, butreferred to number 1865259 as 1863552 once during the testimony. Zea weighed evidence number 1865259, finding it to weigh 958grams. Zea testified that the brick was cocaine with a 95%purity level. No testimony was presented as to any analysis doneon the six bricks inventoried under number 1865258. Followingclosing arguments, the jury found Herrero guilty of possession ofmore than 900 grams of controlled substance. He was thereaftersentenced to 25 years in prison.

I

On appeal, Herrero raises several issues. Herrero arguesthat he was not proven guilty beyond a reasonable doubt becausethe prosecution failed to establish a continuous chain of custodyof the alleged contraband. He also argues that the prosecutionfailed to connect him to the package that was tested and found tobe cocaine. Herrero also argues that he was denied a fair trialwhen, during closing arguments, the prosecutor commented onHerrero's exercise of his right to a jury trial. Herrero claimsthis encouraged the jury to make negative inferences that weredesigned to prejudice his case. Herrero also argues that it wasprejudicial and irrelevant that he did not contest the forfeitureof the automobile since the line of testimony and questioning wasdesigned to encourage the jury to assume that Herrero made sometacit admission. This was compounded when the trial courtsuggested in front of the jury that this line of questioning was"getting to the good stuff." Herrero further argues that hisfundamental rights were denied when jury selection was heldwithout a Spanish interpreter. Even though Herrero voluntarilywaived his right to an interpreter, he claims this waiver was nottruly voluntarily made because the waiver discussion was alsoheld in English, without benefit of a Spanish interpreter.

Finally, both Herrero and the prosecution agree that anerror was made on the mittimus, which did not give him fullcredit for time he had already served. The prosecution does notcontest Herrero's request for a recalculation.

II

We address each of defendant's contentions on appeal inturn. Herrero first challenges the sufficiency of the evidenceby which he was convicted. He argues there were defects in thechain of custody of the alleged contraband and a failure toconnect him to the package which proved to be actual cocaine. The prosecution responds that Herrero must show actual evidenceof the tampering he alleges. The prosecution also responds that,even though six of the kilos recovered may not have beenconclusively proven to be cocaine, there was a sufficientquantity of evidence that was proven to be cocaine so as toconclusively demonstrate that Herrero is guilty of possessingover 900 grams of a controlled substance with the intent todeliver.

A trial court has broad discretion in determining theadmissibility of evidence, and we will not disturb its ruling onappeal absent an abuse of discretion and a showing of prejudiceto the defendant. People v. Lind, 307 Ill. App. 3d 727, 740(1999). Evidence is admissible if it is relevant to an issue indispute and its probative value is not substantially outweighedby its prejudicial effect. Relevant evidence is evidence havingany tendency to make the existence of a fact that is ofconsequence to the determination of an action more or lessprobable than it would be without the evidence. People v.Aguilar, 265 Ill. App. 3d 105 (1994).

The purpose of introducing the evidence and establishing thechain of custody is to connect the object, in this case drugs, tothe defendant and the crime. People v. Lach, 302 Ill. App. 3d593 (1998). The reason the State is required to prove the chainof custody was maintained is to negate the possibility oftampering or substitution, and, therefore, this requirement isapplicable to demonstrative and real evidence that is easilysubject to tampering or substitution without detection. Lach,302 Ill. App. 3d at 593-94. The chain of custody must be ofsufficient completeness to render it improbable that the item hasbeen tampered with, exchanged or contaminated. To establish asufficient chain of custody, the State needs to show that it tookreasonably protective measures after the substance was seized andthat it was probable the evidence was not changed in anyimportant respect or substituted. Lach, 302 Ill. App. 3d at 593-94; People v. Bynum, 257 Ill. App. 3d 502, 510 (1994).

Once the State has established the probability that theevidence was not compromised, and unless the defendant showsactual evidence of tampering or substitution, deficiencies in thechain of custody go to the weight, not admissibility, of theevidence. Lach, 302 Ill. App. 3d at 593-94; Bynum, 257 Ill. App.3d at 510; People v. Tsombanidis, 253 Ill. App. 3d 823, 833(1992). Thus, even where there is a missing link in the chain ofcustody, trial courts have properly admitted evidence where therewas testimony that sufficiently described the condition of theevidence when delivered which matches the description of theevidence when examined. Bynum, 257 Ill. App. 3d at 510. Toestablish a sufficient chain of custody, the State need notdisprove every possibility that the evidence was tampered with. Rather, the State need only show that it was reasonably probablethat the evidence remained unchanged in any important respect orwas not substituted. Lind, 307 Ill. App. 3d at 740. In theabsence of any tangible suggestion of tampering, alteration orsubstitution, it is sufficient if the State proves a reasonableprobability that the article has not been altered. People v.Ryan, 129 Ill. App. 3d 915, 919 (1984).

The prosecution concedes that, with regard to the six kilosinventoried under evidence inventory number 1865258, it failed toestablish that the substance tested was actually cocaine. Theprosecution instead relies on the remaining evidence to supportthe conviction. It is the 958 grams of 95% pure cocaine bearingevidence inventory number 1865259 that it claims establishesHerrero's guilt of possession with intent to deliver. Absent ashowing of actual evidence of tampering or substitution, theprosecution relies on the fact that discrepancies go to weightand not admissibility. Lach, 302 Ill. App. 3d at 594. As to the brick with inventory number 1865259, the trialcourt relied upon the testimony of the forensic scientists in thecrime lab and the police officers involved in the arrest toestablish that the brick connected to Herrero is the same brickthat proved to be cocaine. At one point in the directexamination, the prosecutor referred to the brick carried byHerrero as having inventory number 1863552 rather than 1865259. Prior to this, and after this, the prosecutor and witnessreferred to this brick as having inventory number 1865259. Further, at one point forensic chemist Zea testified that the boxwith inventory number 1865258 contained seven kilos rather thansix kilos. However, Zea also testified that the contents matchedthe inventory report, which said the boxes contained six kilos,and Zea testified the contents consisted of six kilos. The trialcourt found credible the testimony that the evidence would notfit into envelopes and had to be placed in larger containers. Inlight of the evidence presented, any questions remaining aboutthe chain of custody were properly attributed by the judge toweight and not admissibility.

A criminal conviction will not be set aside unless it is soimprobable or unsatisfactory that a reasonable doubt as to thedefendant's guilt still remains. People v. Lane, 319 Ill. App.3d 162 (2001). When considering a challenge to a criminalconviction based upon the sufficiency of the evidence, it is notthe function of this court to retry the defendant. People v.Hall, 194 Ill. 2d 305 (2000). The trier of fact is allowed tomake all reasonable inferences from the evidence. People v.Merritt, 318 Ill. App. 3d 115 (2001).

Witnesses' credibility and the weight to be given theirtestimony are determinations exclusively within the province ofthe trier of fact. People v. Smith, 318 Ill. App. 3d 64 (2000). Absent clear error on the part of the jury, the reviewing courtshould defer to the trier of fact. People v. Eyler, 133 Ill. 2d173, 191 (1989). The standard of review on a challenge to thesufficiency of the evidence is whether, after viewing theevidence in the light most favorable to the State, any rationaltrier of fact could have found the essential elements of thecrime beyond a reasonable doubt. Smith, 318 Ill. App. 3d at 73. It is sufficient if all of the evidence taken together satisfiesthe trier of fact beyond a reasonable doubt of the defendant'sguilt. Hall, 194 Ill. 2d at 330. Here, two police officerstestified that they saw Herrero carry the brick of cocaine whichwas given inventory number 1865259, from the Buick into abuilding and then return the cocaine to the car. The jury wasapprized of the chain of custody and the testing done on thatbrick. Defendant argued to the jury that these discrepancieswere fatal to the State's case and they should find defendant notguilty. The jury's verdict that Herrero was guilty of possessingmore than 900 grams of cocaine with the intent to deliver wassupported by the evidence.

Herrero next asserts that he was unable to meaningfullyparticipate in the jury selection process because he is primarilya Spanish-speaking individual and the trial court proceedingswere conducted in English. The prosecution counters that Herrerowas, at all times relevant, represented by English-speakingcounsel who was never accused of having provided ineffectiveassistance. The prosecution also argues that the defendant'swaiver was knowing and freely made, free of duress ormisunderstanding. The record shows, according to theprosecution, that the defendant has enough of a command of theEnglish language to effectuate a valid waiver. The followingdiscussion took place when the trial court learned that theinterpreter could not be present for the jury selection process:

"DEFENSE: Mr. Herrero is a Spanishspeaking individual. We ordered aninterpreter and he isn't here. Heunderstands well enough that if you want youcan admonish him on the record. Heunderstands well enough what is going on interms of picking this jury. He doesn't havea problem and wants to proceed this way. Perhaps we should put that on the record andtomorrow morning when we do openingstatements and evidence --

THE COURT: Mr. Herrero, would you stepup here, please.

DEFENSE: I'm for sure that we wouldhave an interpreter.

PROSECUTION: We would like to put onthe record that neither one of theseindividuals ever needed an interpreter.

DEFENSE: I think the first time I washere with Mr. Herrero at the bond hearingdidn't we?

I just wanted to be sure that the recordis clear and that there is no alleged errorlater on we will want an interpreter for thetrial and it should be no problem getting onetomorrow.

For the record, I have discussed with myclient Mr. Herrero his desire to proceed thisafternoon with picking the jury and he hasindicated to me that he understands and wishwell enough for that portion of the trial andwants to proceed.

Mr. Herrero, is it your desire now toproceed with picking the jury?

HERRERO: Yes.

DEFENSE: Without an interpreter?

HERRERO: Yes.

DEFENSE: Do you understand what I'msaying to you now, is that correct?

HERRERO: Yes.

* * *

THE COURT: Mr. Herrero, have youunderstood the conversation that has takenplace in the last ten minutes or so?

HERRERO: I understand a little bit.

THE COURT: Mr,. Herrero, do you haveany objection to picking the jury now withoutthe interpreter?

HERRERO: No.

The decision to appoint an interpreter is within the trialcourt's discretion, and a conviction will be reversed only whenan abuse of the court's discretion deprived the defendant of somebasic right. People v. Escalante, 256 Ill. App. 3d 239 (1994). It is well settled that defendants have the right to appear anddefend themselves in person at all stages of trial, includingjury selection. Ill. Const. 1970, art. I,