People v. Jones

NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.

Docket No. 80405--Agenda 13--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TONY JONES,
Appellee.
Opinion filed December 19, 1996.


JUSTICE HEIPLE delivered the opinion of the court:
Defendant, Tony Jones, was arrested for the possession of five
separate packets containing a white rocky substance which the
police believed to be a controlled substance. The State selected
two of the five packets and tested their contents. The contents of
the remaining three packets were not tested. Results of the two
packets tested showed the presence of cocaine. Notably, the two
packets tested weighed a combined total of 0.59 grams while the
total weight of all five packets was 1.4 grams. Defendant was tried
and convicted of possession with intent to deliver 1.4 grams of
cocaine, a Class 1 felony. 720 ILCS 570/401(c)(2) (West 1992). The
appellate court reversed, finding that the evidence only supported
defendant's possession of 0.59 grams of cocaine, with intent to
deliver, a Class 2 felony. 720 ILCS 570/401(d) (West 1992).
Accordingly, the appellate court reduced his conviction from a
Class 1 to a Class 2 felony and reduced his sentence from six years
to four years. 276 Ill. App. 3d 926. We affirm.

ANALYSIS
When a defendant is charged with possession of a specific
amount of an illegal drug with intent to deliver and there is a
lesser included offense of possession of a smaller amount, then the
weight of the seized drug is an essential element of the crime and
must be proved beyond a reasonable doubt. People v. Williams, 267
Ill. App. 3d 870, 879 (1994). A chemist, however, generally need
not test every sample seized in order to render an opinion as to
the makeup of the substance of the whole. People v. Maiden, 210
Ill. App. 3d 390, 398 (1991). Rather, random testing is permissible
when the seized samples are sufficiently homogenous so that one may
infer beyond a reasonable doubt that the untested samples contain
the same substance as those that are conclusively tested. People v.
Hill, 169 Ill. App. 3d 901, 912 (1988). This rule is based in
reason and practicality.
In People v. Kaludis, 146 Ill. App. 3d 888, 891-92 (1986), for
example, a forensic chemist visually examined 100 tablets and
determined that they had identical markings, lettering
characteristics, bevelling, and scoring. Based on this visual
examination, the chemist opined that all the tablets were
manufactured on the same tablet press with the same set of dies.
Kaludis, 146 Ill. App. 3d at 892. Subsequent chemical test results
of three of the tablets established the presence of a controlled
substance, which led the expert to testify that all 100 tablets
contained the same controlled substance. Kaludis, 146 Ill. App. 3d
at 892.
However, when such samples are not sufficiently homogenous, a
portion from each container or sample must be tested in order to
determine the contents of each container or sample. See People v.
Williams, 267 Ill. App. 3d 870 (1994); People v. Young, 220 Ill.
App. 3d 488 (1991); People v. Hill, 169 Ill. App. 3d 901 (1988);
People v. Games, 94 Ill. App. 3d 130 (1981); People v. Ayala, 96
Ill. App. 3d 880 (1981). In the instant case, defendant possessed
five packets, each containing a white rocky substance. While the
chemist looked at all the packets and weighed them individually,
she selected only two packets for chemical analysis. The two
packets tested showed the presence of cocaine and weighed a
combined total of 0.59 grams.
What inference can be drawn concerning the composition of the
three packets not tested? Without more, the answer is none at all.
And in this case, the five packets containing loose substances
cannot be equated with identically marked and stamped tablets,
pills, or capsules. While it is not difficult to speculate, as did
the trial judge, that the remaining three packets may have
contained cocaine, such a finding must be based on evidence and not
upon guess, speculation, or conjecture. Quite simply, the chemist
failed to test a sufficient number of packets to prove beyond a
reasonable doubt that defendant possessed one gram or more of
cocaine.
Look-alike substances (pseudo narcotics) are sold with such
regularity that the legislature has drafted a criminal statute
proscribing their sale. 720 ILCS 570/404 et seq. (West 1992).
Whether the untested packets in the instant case may have contained
cocaine or mere look-alike substances is pure conjecture. The State
was in the best position to answer this question; it had the seized
packets and could have easily tested a sample from each. This it
did not do. Thus the State did not meet its burden of proof of
guilt beyond a reasonable doubt as to the untested packets.
Accordingly, the appellate court's judgment reducing
defendant's Class 1 felony to a Class 2 felony and his sentence
from six years to four years is hereby affirmed.

Appellate court judgment affirmed.

JUSTICE MILLER, dissenting:
Unlike the majority, I believe that the State presented
sufficient evidence to establish the defendant's guilt of the
charged offense of possession with intent to deliver more than one
gram but less than 15 grams of cocaine. In the circumstances shown
here, the tests performed on two of the five plastic packets found
together in a single bag in the defendant's possession were
adequate to establish the contents of all five packets, and the
judge at the bench trial below was entitled to infer from the
evidence that the defendant was guilty of an offense involving the
greater amount of contraband.
In requiring direct rather than circumstantial evidence of the
contents of each packet, the majority ignores the rationale for the
rule to which this decision will stand as an exception. The
majority acknowledges that proof by random sampling may be used for
tablets, pills, or capsules, yet the majority refuses to allow the
same process of proof when contraband is divided among plastic
packets, as it was here. There is no reason to allow random
sampling in one case and not the other, however. The same
considerations of "reason and practicality" (slip op. at 1) that
permit the use of sampling when contraband takes the form of
tablets, pills, or capsules also warrant its use when contraband is
found in plastic packets or other, similar, containers. See People
v. Black, 264 Ill. App. 3d 875, 877 (1994). Indeed, the contents of
capsules can be as variable as the contents of the plastic packets
involved in this case. In either event, tests of randomly selected
samples may provide circumstantial evidence of the contents of the
remaining items.
The strength of the inference of guilt will depend, of course,
on the circumstances in the case, including the size and appearance
of the items involved and the manner in which they were kept by the
defendant or made available for distribution. Dissimilarities in
the size or appearance of the containers or in the manner in which
they were grouped, for example, might suggest that their contents
are also dissimilar. In the present case, all five plastic packets
were kept together in a single bag, and the defendant does not
point to any feature that distinguished the two packets that were
tested from the three that were not.
In support of its decision, the majority also notes the
existence of look-alike drugs and the separate statute proscribing
their sale, suggesting that untested samples might actually
comprise a look-alike substance rather than the drug alleged in the
charge. The same objection can be raised, however, when the
contraband is in one of the forms for which the majority would
allow proof by random sampling. Tablets, pills, and capsules can
also be look-alike substances.
Finally, our recent decision in People v. Robinson, 167 Ill. 2d 397 (1995), is not to the contrary. The court in that case
merely noted the line of appellate court authority under which "a
sample from each separate bag or container must be tested to prove
that it contains a controlled substance." Robinson, 167 Ill. 2d at
409. Robinson did not find it necessary to resolve the issue raised
here.
I believe that there was sufficient proof of the defendant's
guilt of the charged offense, and I would therefore affirm the
defendant's conviction. There is no reason to require the State in
cases such as this to test the contents of each of the items the
defendant has in his possession. Random sampling can provide
circumstantial evidence of guilt, the strength of which will vary
from case to case. Today's decision simply imposes an unnecessary
burden on the State, making more difficult the prosecution of
offenders who are found with contraband divided among multiple
bags, packets, or other containers that, under the majority's rule,
must now be tested individually.

CHIEF JUSTICE BILANDIC joins in this dissent.