Opinion
No. 1-16-0424
06-14-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN JAMERSON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 15 CR 11988 Honorable Nicholas R. Ford, Judge, presiding. JUSTICE McBRIDE delivered the judgment of the court.
Presiding Justice Burke and Justice Ellis concurred in the judgment.
ORDER
¶ 1 Held: Defendant's conviction for delivery of a controlled substance affirmed where he affirmatively waived his claim for review by stipulating at trial to the nature and weight of the recovered substance. ¶ 2 Following a bench trial, defendant Brian Jamerson was convicted of delivery of a controlled substance (720 ILCS 570/401(c)(1) (West 2014)), and sentenced to six years' imprisonment. On appeal, defendant contends the State failed to prove him guilty beyond a reasonable doubt because there was no evidence presented that a trained chemist performed 2 scientifically valid testing to determine whether the items recovered contained a controlled substance or how much they weighed. For the following reasons, we affirm. ¶ 3 Defendant was charged with delivery of a controlled substance within 1000 feet of a school and delivery of a controlled substance, 1 gram or more but less than 15 grams of heroin. At trial, Chicago police officer McGhee testified that, on July 10, 2015, she was assigned to the narcotics section of the Organized Crime Division. She was part of a team with Officers Horton, Ivy, Mitchem, and Thompson. McGhee was undercover and in a covert vehicle in the area of 57th Street and South Wolcott Avenue at around 7:30 p.m. Her team called an individual and expressed interest in purchasing narcotics. Pursuant to that individual's instructions, McGhee and Horton, who was driving the covert vehicle, relocated to the specified alley at the rear of a home on South Wolcott. ¶ 4 Once in the alley, McGhee observed a man, later identified as defendant, wearing a white t-shirt with blue sleeves and khaki slacks exit the rear of the residence. Defendant spoke with McGhee through the driver's side window of the covert vehicle. She asked defendant for "two," which referred to the number of bags of heroin she wanted to purchase. Defendant gave her "two," although "it was actually four because [the bags] were sealed together, two bags apiece." McGhee gave defendant $20 of prerecorded police funds, and she and Horton drove away. ¶ 5 McGhee thereafter alerted her team via radio communication that there was a "positive hand-to-hand narcotics transaction done." She additionally gave her team a description of defendant's clothing. She identified defendant after he had been arrested, but noted he had changed into a yellow shirt. 3 ¶ 6 On cross-examination, McGhee acknowledged that defendant was the only person presented to her when she identified the narcotics seller. She identified defendant approximately 15 to 20 minutes following the transaction. ¶ 7 Chicago police officer Raphael Mitchem testified that he was assigned to the narcotics division on July 10, 2015. At around 7:45 p.m., Mitchem received a radio communication from McGhee and Horton and, as a result, he relocated to an alley on the 5700 block of South Wolcott. He parked nearby and, dressed in plain clothes, approached the alley on foot. Mitchem observed a man, whom he later identified as defendant, behind a fence at a residence in the alley. He also observed the covert police vehicle with the undercover officers who were going to purchase narcotics. ¶ 8 Mitchem watched defendant and McGhee engage in a suspected narcotics transaction. Following the exchange, McGhee and Horton drove away in their vehicle and nodded at Mitchem as they drove past. Mitchem maintained surveillance on defendant. He observed a second suspected exchange between defendant and another woman. The woman walked away from the alley, and Mitchem radioed the team to inform them of her location. Enforcement officers detained the woman shortly thereafter. Defendant walked back into the residence on South Wolcott. ¶ 9 To ensure that they had "people out front," Mitchem radioed the team that defendant went inside the residence. The other officers radioed that they were in front of the residence and defendant had not emerged. Mitchem did not take photographs or audio or video recordings. 4 ¶ 10 Chicago police officer Bowen testified that, on July 10, 2015, he was in plainclothes driving an unmarked vehicle. At around 7:45 p.m., he was in the area of 57th and Laflin Streets for a controlled buy set up by his team. He was notified via radio transmission that there was a positive transaction. The seller was described as a light skinned black man with short twisted hair wearing a white t-shirt with blue sleeves. After receiving the description, Bowen relocated to the location of the narcotics purchase. ¶ 11 Once at the location, a surveillance officer told him that the suspect ran into a residence. Bowen and his partner went to the front of the home and spoke with various residents. One resident, later identified as defendant's mother, allowed Bowen and his partner to go inside and directed them upstairs to defendant's room. Bowen arrested defendant and brought him to the rear of the residence, where he was positively identified by McGhee as the person who sold her suspected heroin. The residence was near Henderson Elementary School, which was located at the 5600 block of South Wolcott. ¶ 12 On cross-examination, Bowen testified that the information about going inside defendant's house was included in a second supplemental police report. He emphasized defendant's mother gave consent to enter the home. Bowen denied searching the residence and acknowledged that he did not recover narcotics from the residence. ¶ 13 Following the live witnesses, the State offered a stipulation between the parties into evidence. The following colloquy ensued. "THE STATE: Approaching defense counsel [ ]. And [the stipulation] reads as follows: 5 'Illinois State Police laboratory report. If called to further testify, Officer McGhee would state that she inventoried those four heroin bags under Inventory No. 13481130; that these bags were sent to the Illinois State Police lab; that there was a positive finding that the items submitted contained 1.03 grams of powder from four plastic bags found heroin as the drug.' So stipulated? [DEFENSE COUNSEL]: So stipulated." ¶ 14 Defendant moved for a directed finding, which the court granted for count 1, delivery of a controlled substance within 1000 feet of a school. Following arguments, the court found defendant guilty of delivery of 1 gram or more but less than 15 grams of heroin. The court found McGhee and Mitchem "highly believable" and that "defendant was engaged in the practice of selling narcotics out there and that he went into the home and changed his shirt, perhaps because he was aware having seen unusual cars in the area that something was up." ¶ 15 In a posttrial motion for new trial, defense counsel argued the evidence was insufficient to convict defendant because Officer McGhee's identification of defendant was unreliable, as he was the only person in the back of a police vehicle and was wearing different clothes than McGhee described the seller as wearing. Further, counsel argued defendant was arrested in his home, yet no narcotics or prerecorded police funds were recovered. The court denied the motion. The court subsequently sentenced defendant, a mandatory Class X offender due to his background, to six years' imprisonment. 6 ¶ 16 On appeal, defendant contends the evidence was insufficient to prove him guilty beyond a reasonable doubt of delivery of more than 1 gram but less than 15 grams of heroin because the stipulation entered into at trial did not show that a trained chemist performed the requisite testing to determine whether the recovered items contained heroin and how much they weighed. ¶ 17 On a challenge to the sufficiency of the evidence, we inquire " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis omitted.) People v. Davison, 233 Ill. 2d 30, 43 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). ¶ 18 To prove defendant guilty of delivery of a controlled substance, specifically of 1 gram or more but less than 15 grams of heroin, the State was required to prove that the material received from defendant was, in fact, a controlled substance and was the same substance tested by the forensic chemist. People v. Woods, 214 Ill. 2d 455, 466 (2005). Further, because defendant was charged with delivery of a specific amount of an illegal drug and there exists a lesser included offense for delivery of a smaller amount of that drug, the weight of the illegal drug is also an essential element of the offense. People v. Jones, 174 Ill. 2d 427, 428-29 (1996). ¶ 19 Defendant claims that the plain reading of the stipulation indicates that Officer McGhee would have testified to the parts of the stipulation regarding the finding of the presence of heroin and the weight of the substance. He argues that the stipulation, therefore, fails to show that a 7 qualified chemist tested and weighed the recovered substance, and McGhee's testimony cannot establish the nature of the substance. ¶ 20 As an initial matter, we note that the parties disagree as to whether defendant waived this issue. The State argues that (1) defendant waived the issue by failing to preserve it below, and (2) affirmatively waived this issue by stipulating at trial to the chemical composition and weight of the recovered substance at trial. Defendant contends his argument is a challenge to the sufficiency of the evidence, which can be raised at any time and is not subject to waiver. We agree with the State that defendant affirmatively waived his challenge to the sufficiency of the stipulation when he "took part in its offering into evidence" by agreeing to stipulate to the nature and weight of the recovered substance. Woods, 214 Ill. 2d at 473. ¶ 21 It is well established that "an accused may, by stipulation, waive the necessity of proof of all or part of the case which the People have alleged against him." People v. Polk, 19 Ill. 2d 310, 315 (1960). " 'A stipulation is conclusive as to all matters necessarily included in it.' " Woods, 214 Ill. 2d at 469 (quoting 34 Ill. L. and Prac. Stipulations § 8 (2001) (now 34 Ill. L. and Prac. Stipulations § 11 (2018))). " 'No proof of stipulated facts is necessary, since the stipulation is substituted for proof and dispenses with the need for evidence.' " Id. (quoting 34 Ill. L. and Prac. Stipulations § 9 (2001) (now 34 Ill. L. and Prac. Stipulations § 12 (2018))). In general, a defendant is precluded from attacking or otherwise contradicting any facts to which he has stipulated. Id. Stipulations are binding and conclusive on the parties. People v. Calvert, 326 Ill. App. 3d 414, 420 (2001). Parties will not be relieved from a stipulation absent a clear showing that the matter stipulated to was untrue and only then when there is a timely objection. Id. 8 ¶ 22 Here, a careful review of the record demonstrates that defendant stipulated to the nature and weight of the substance recovered from the narcotics transaction with McGhee. Defendant's assertion that the stipulation's plain reading shows a series of statements to which McGhee would testify is based on his interpretation of the stipulation in the trial transcript. The written stipulation that the State read into the record is not available for review. People v. Smith, 406 Ill. App. 3d 879, 886 (2010) (it is the appellant's burden to provide a complete record on appeal). We also note that the stipulation reads "Illinois State Police laboratory report," but it is unclear from the record whether the lab report was admitted into evidence, and it is not contained in the record. ¶ 23 Contrary to defendant's assertion, the entirety of the transcript reveals that the intent of the parties was to remove the issue concerning the nature and weight of the substance from the case. See Woods, 214 Ill. 2d. at 468-69 ("The primary rule in the construction of stipulations is that the court must ascertain and give effect to the intent of the parties."). Defendant's argument at trial and in his posttrial motion was that the evidence was insufficient because McGhee's identification was unreliable and no narcotics or prerecorded funds were recovered from defendant upon his arrest. At no point during trial or in his posttrial motion did defendant challenge the contents or sufficiency of the evidence contained within the stipulation, specifically that the four packets contained 1.03 grams of heroin. ¶ 24 By stipulating to the nature and weight of the recovered substance, defendant, through defense counsel, lead the State to believe there was no issue as to the sufficiency of that evidence. If defense counsel had not stipulated, the State could have addressed this issue at trial, either through a more specific stipulation or by calling to testify the chemist who tested and 9 weighed the substance. Defendant may not now attack the facts to which he stipulated and claim his intent at trial was something else entirely. Woods, 214 Ill. 2d at 469. Accordingly, we find that defendant affirmatively waived this issue. See id. at 475; see also People v. Caffey, 205 Ill. 2d 52, 114 (2001) (when a party procures, invites, or acquiesces in the admission of evidence, he cannot challenge on appeal the admission of that evidence). As our supreme court noted in Woods, "It would be patently unfair to allow defendant to raise this challenge at such a late date for the first time on appeal." Woods, 214 Ill. 2d at 475. ¶ 25 For the same reasons, we reject defendant's alternative argument that the State failed to prove the weight of the recovered items because there was no evidence that the four bags of suspected heroin were tested separately prior to being combined and weighed. ¶ 26 Generally, a chemist need not test each sample that was seized to render an opinion regarding the makeup of the whole of a recovered substance. Jones, 174 Ill. 2d at 429. However, when the recovered substance is "in the form of powder in separate packets, a sufficient number of the seized packets must be tested to establish that the defendant possessed the requisite amount of the illegal drug to prove the weight element beyond a reasonable doubt." People v. Fountain, 2011 IL App (1st) 083459-B, ¶ 14. If the contents of the packages are combined before they are tested, then the test results are insufficient to prove beyond a reasonable doubt the weight element. People v. Harden, 2011 IL App (1st) 092309, ¶ 40. ¶ 27 As previously discussed, defendant affirmatively waived this argument by stipulating to the weight of the substance at trial. Because of the stipulation, the State was not required to prove that the bags were tested separately because the stipulation was substituted for proof. See Woods, 214 Ill. 2d at 469 (" 'No proof of stipulated facts is necessary, since the stipulation is 10 substituted for proof and dispenses with the need for evidence.' " (quoting 34 Ill. L. and Prac. Stipulations § 9 (2001) (now 34 Ill. L. and Prac. Stipulations § 12 (2018))). Thus, when viewing the evidence in the light most favorable to the State, we find that the evidence, including the stipulation, was sufficient to enable a rational trier of fact to find the essential elements of delivery of a controlled substance beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Accordingly, we affirm defendant's conviction. ¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 29 Affirmed.