In re R. F.

FIRST DIVISION
July 27, 1998

No. 97-3781

In re R.F., a Minor

(The People of the State of Illinois,

Petitioner-Appellee,

v.

R.F., a Minor,

Respondent-Appellant).)
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Appeal from the
Circuit Court of
Cook County

No. 96 JD 17533

Honorable
Charles M. May and
Daniel P. Darcy,
Judges Presiding.


JUSTICE GALLAGHER delivered the opinion of the court:
This appeal involves the chain of custody of narcotics
admitted during minor respondent R.F.'s (respondent s)
adjudicatory hearing to determine delinquency. A finding of
delinquency was made based on allegations of possession of a
controlled substance and possession with intent to deliver a
controlled substance. 720 ILCS 570/401 through 402 (West 1996).
Respondent was sentenced to the Department of Corrections. He
appeals on the ground that the State did not establish a
foundation for the admission into evidence of one packet of a
substance which was stipulated by the parties to contain .01
grams of heroin.
The State has conceded on appeal "that a proper chain of
custody or foundation for the admission into evidence of the
heroin recovered from respondent was not laid." The only
question before this court therefore is whether the insufficiency
of the foundation requires outright reversal or reversal and
remand for another adjudicatory hearing.
The State argues that reversal and remand are appropriate
since there was the improper admission of evidence here, rather
than an insufficiency of evidence. The State cites People v.
Maurice, 31 Ill. 2d 456 (1964), in support of its position. In
that case the police observed defendant selling heroin and
recovered the heroin. A police chemist's stipulated testimony
revealed that several foil packets received from a police officer
contained heroin. The packets were all introduced into evidence
over the defendant's objection that no evidence linked the
packets with the defendant. The supreme court said that since
the trial court erroneously admitted the packets, a new trial was
necessary. The court also stated: "Admission of the heroin into
evidence without positive identification or continuity of
possession was error. Without it there is no proof that the
material dispensed by Maurice to Boyd [the alleged purchaser] was
the same as that tested by the chemist and found to contain
narcotics." 31 Ill. 2d at 459.
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. A clear plastic bag containing tinfoil packets was
recovered by one officer. This was inventoried and given number
1744762. There were 23 separate packets in the bag. A
stipulation entered into at the hearing disclosed that a forensic
scientist, Mr. Moka, examined one packet which tested positive
for .01 grams of heroin. The officer could not recall whether he
inventoried the items under number 1744762. The State did not
refresh the officer's recollection. There were no matching
inventory numbers between the items seized and the substance
analyzed. No inventory envelope was introduced into evidence.
Thus, the evidence was insufficient to establish a foundation
that the 23 packets, one of which contained heroin, were in fact
recovered from the respondent.
Reversal for trial error is a determination that the
defendant has been convicted by means of a judicial process
defective in some fundamental respect, whereas reversal for
evidentiary insufficiency occurs when the prosecution has failed
to prove its case, and the only proper remedy is a judgment of
acquittal. People v. Olivera, 164 Ill. 2d 382, 393 (1995),
citing People v. Mink, 141 Ill. 2d 163, 173 (1990). The first
instance does not preclude retrial under the double jeopardy
clause of the United States Constitution; the second instance
does. Mink, 141 Ill. 2d at 173. We find that there was no
fundamental defect in the judicial process in the adjudicatory
hearing. Rather, there was evidentiary insufficiency due to a
failure on the part of the State to lay a foundation for the
connection between respondent and the heroin.
This insufficiency of evidence requires that we reverse
outright. Our decisions in People v. Terry, 211 Ill. App. 3d 968
(1991), and People v. Gibson, 287 Ill. App. 3d 878 (1997), are in
accord with this remedy.
Reversed.
O BRIEN and O MARA FROSSARD, JJ., concur.