Record and brief — Comay v. Illinois
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WON
Office - Suprema Cart, U.S.
FILED
— 16 1981
ALEXANDER L. STEVAS,
CLERK
Iu the
Supreme Court of the United States
Octoser Term, 1981
DANIEL COMAY,
Petitioner,
vB.
PEOPLE OF THE STATE OF ILLINOIS,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
APPELLATE COURT OF ILLINOIS, FIRST
JUDICIAL DISTRICT
No. 80-423
JULIUS LUCLUS ECHELES
FREDERICK F. COHN
CAROLINE JAFFE
35 East Wacker Drive
Chieage, IL. 60601
Attorneys for Petitioner
UNITED STATES LAW PRINTING (C.. CHICAGO, ILLINOIS 60618 (312) 525-6581
i
QUESTIONS PRESENTED
1. Under principles set out in /n Re Winship, 397 U.S.
358, and Jackson v. Virginia, 443 U.S. 307, was defendant
deprived of due process of law due to a complete failure
of proof of ‘‘chain of custody’’ of the alleged contraband,
resulting in a total absence of proof as to the nature of
the substance, an essential element of the offense?
2. Whether defendant was denied due process of law,
per principles of Leary v. United States, 395 U.S. 6, In Re
Winship, 397 U.S. 358, Jackson v. Virginia, 443 U.S. 307,
and Sandstrom v. Montana, 442 U.S. 510, where the essen-
tial element of ‘‘possession’’ was deemed established by
application of a presumption of constructive possession
arising from proof of control of the premises, but other
facts and cireumstances—including access to the premises
by others—negate such conclusion and raise a reasonable
doubt of defendant’s guilt.
3. Whether defendant was deprived of his constitution-
ally protected right to present relevant defense evidence,
where his convictien rests on proof of constructive, rather
than actual possession, and the court excluded evidence
tending to demonstrate that someone else (defendant’s
former live-in lady friend) may have placed the substance
where it was found.
ii
Parties Involved*
Petitioner, Daniel Comay, was the defendant in the trial
court, appellant in the Appellate Court of Illinois, First
Judicial District, and petitioner in the Supreme Court of
Illinois. Respondent, the People of the State of Illinois,
was the prosecution (plaintiff) in the trial court, appellee
in the Appellate Court, and respondent in the Supreme
Court of Illinois.
* Per Rule 21.1()).
iii
TABLE OF CONTENTS
PAGE
Questions Presented ..................... sinduatihihiaicepiatiapatehiaiunts i
SESE RIS oe Oe oe OTe ne CS ii
Judgment and Opinions Below —..020......0...2..2.------eee eee 2
Jurisdictional Statement ...................cecececsceseecceceeeneees 2
Constitutional Provisions and Statutes Involved ........ 2
ICT I ie a ealiemiitl anced 3
IN I cr inienensinninafisdehsaniiaiindaes 3
LE LAS RR TES O 4
Basic Facts of Prosecution’s Case ................ 4
Facts re ‘‘Chain of Custody’’ ....................... 4
Facts re Constructive Possession -.................. 10
Facts re Exclusion of Relevant Defense Evi-
IT: “Seehinssscicacctlhdeibleilelacsiicaiietlailltctahieeinsiantdiisamenninindenpemads 11
Raising the Federal Questions Below .................. 11
Reasons for Granting the Writ 2.2.2.2... cece 14
1. ‘The decision below seriously erodes the due pro-
cess standards relative to the State’s burden to
prove every element of the offense beyond a rea-
sonable doubt, Jn Re Winship, 397 US. 358, by
finding that the nature of the substances had been
established despite a complete failure of proof of
‘*chain of custody.’’ This Court should grant cer-
tiorari to clarify the applicability of the due pro-
cess aspects of Jackson v. Virginia, 443 U.S. 307, to
a State bench trial, and to speak to the evidentiary
requirement of proof of a continuous ‘‘chain of
custody’’ of alleged contraband as an essential in-
gredient of proof of the nature of the substance
es Ieudesdinatdieicindtdinnencsttthinnaincintenitaidginnichiats 14
iv
PAGE
2. The decision below undermines the due process
standards relative to the State’s burden to prove
every element of the offense beyond a reasonable
doubt, per In Re Winship, 397 U.S. 358 and Jack-
son Vv. Virginia, 443 U.S. 307, and with respect to
the doctrine of Sandstrom v. Montana, 442 U.S.
510, invalidating any shift of the State’s burden
of proof. Here, on the facts, an unconstitutional
presumption of constructive possession from the
fact that the contraband was found in an apart-
ment occupied by defendant was utilized to justify
the finding of possession, in violation of principles
set out in Leary v. United States, 395 U.S. 6. Cer-
tiorari should be allowed so that this Court may
enforce upon the States the due process require-
ments expressed in such decisions _ .................... 20
3. The decision below seriously erodes the federally
protected constitutional right to present evidence
relevant to the defense, approving exclusion of evi-
dence supporting defendant’s defense theory on
the spurious basis that no forma »ffer of proof
was made. Certiorari should be allowed to insure
that the States do not apply their own procedural
rules to thwart due process principles concerning
proffered defense evidence .......-.....-.........ecseeeeee 26
I elias reeadalhsaniniadntmenrcenapeastieisiinbineshntinniaventiies 28
Appendix
A—Order of Appellate Court of Illinois, First
Judicial District, dated March 17, 1981 _...... App. 1
B—Order of Supreme Court of Illinois denying
Petition for Leave to alte dated October
EE ctbsepssillldhatekiiniincnentigapimncasnaiieipuhdeitanpotei App. 12
v
TABLE OF AUTHORITIES
Cases
PAGE
Arrellanes v. United States, 302 F.2d 603 (9 Cir.
STITT siinchehbetsicunia iciehnetinciiclaghladentesesinesntiiiinieipeinaapiaibaaiaaaal 21, 24
Brewer v. United States, 353 F.2d 260 (8 Cir. 1965) . 16
Chambers v. Mississippi, 410 U.S. 284, 35 L.Ed.2d 997
TUTE cnsesiincajlabeenenamnencsndniasithinianinniiiiininienesiinaisinindliibs 26
Gallego v. United States, 276 F.2d 914 (9 Cir. 1976) .. 16
Holt v. Virginia, 381 U.S. 131, 14 L.Ed.2d 1019 (1976) 26
In Re Winship, 397 U.S. 358, 25 L.Ed.2d 368 (1970) ..i, 14,
20, 25
Jackson v. Virginia, 443 U.S. 307, 5 L.Ed.2d 560
CITI =cssciesicecsienensaislstetiictintmiicstpeiensatitiansssiniial i, 14, 19, 20, 21, 25
Leary v. United States, 395 U.S. 6, 23 L.Ed.2d 57
SUIT -<<cocessilieaentiabilipncigpevebieideedlliiosninticidlahianieanniaiil i, 20, 21, 25
Novak v. District of Columbia, 160 F.2d 588 (D.C. Cir.
ELIS tS SP LOR AEA ES) bu 15
People v. Binns, 27 Il. App.3d 978, 327 N.E.2d 369
2 ee 24, 27
People v. Catavdella, 31 Ill. 2d 382, 202 N.E.2d 1 (1964) 24
People v. Connie, 52 Ill. App. 2d 221, 201 N.E.2d 641
Ge es. TIED tcccrcissiteinsnipiieititinsasccsiicraiaiiiiadiiiainpitibalitiniiieaaal 22
People v. Faulkner, 82 Lil. App. 2d 54, 226 N.E.2d
og ae 24
People v. Ireland, 38 Ill. App. 3d 616, 348 N.E.2d 277
BP Bs GIPIID ccediestersiueensiniciiiiseesentticcimnmiiinietiimieeal .24, 27
People v. Judkins, 28 Ill. 2d 417, 192 N.E.2d 848 (1963) 17
People v. Maurice, 31 Ill. 2d 456, 202 N.E.2d 480
CRIED cxsctinstvnninictattaiceteipsiisiiliniinniiinninbiianinitiiammiaibcasinal 17,18
vi
PAGE
People v. Nettles, 23 Ill. 2d 306, 178 N.E.2d 361 (1976) 21
People v. Quintana, 91 Ill.App.2d 95, 234 N.E.2d 406
ERNE ee 24
People v. Ridley, 59 Ill. App. 3d 164, 376 N.E.2d 43
6 Se ee a Ee 24
People v. Resketo, 3 Ill. App. 3d 633, 279 N.E.2d 432
i Ee 17
People v. Scott, 22 Ill. App. 3d 770, 317 N.K.2d 737
gE ere 17
People v. Wolski, 27 Ill. App. 3d 526, 327 N.E.2d 308
i laslinitcatteindtomngpantet 22, 24
Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed.2d 39
EE i, 20, 21, 25
Smith v. United States, 157 F.2d 705 (D.C. Cir. 1946) . 15
United States v. Batimana, 623 F.2d 1366 (9 Cir.
i cesiemainl 22, 24
United States v. Brown, 482 F.2d 1226 (8 Cir. 1973) . 16
United States v. Diggs, 527 F.2d 509 (8 Cir. 1975) ........ 25
United States v. Jackson, 482 F.2d 1264 (8 Cir. 1973) . 16
United States v. Landry, 257 F.2d 425 (7 Cir. 1957) ..22, 24
United States v. McKinney, 631 F.2d 569 (8 Cir. 1980) 16
United States v. Santiago, 534 F.2d 768 (7 Cir. 1976) . 16
United States v. S. B. Penick & Co., 136 F.2d 413 (2
ES SEE ee a ee 16
United States v. Thomas, 453 F.2d 141 (9 Cir. 1971) .. 22,
24, 25
Vii
United States v. Vole, 435 F.2d 744 (7 Cir. 1970) ...... 27
United States v. Williams, 544 F.2d 1389 (8 Cir. 1976) 16
Washington v. Texas, 388 U.S. 14, 18 L.Ed.2d 1019
UII: cnsinecidsdcioussiddaiataspensbisescipsiniiiipinconesituinithicichdatihiapsigeientesiiinain 26
Statules
sD SEI». casnssctibianssceistiesinescxtnceneenninintintanintnemtastininitei 2
Ill. Rev. Statutes Chap. 110A, See. 23 ..0020...... 2
Rules
United States Supreme Court Rule 20.1 ............ satiate 2
United States Supreme Court Rule 21.1(b) -.............. ll
United States Supreme Court Rule 21.1(g) 20000... 4
United States Supreme Court Rule 21.1(h) ~.............. 11
United States Supreme Court Rule 21.1(k)(i) —......... 2
Illinois Supreme Court Rule 23 200. 2
Iu the
Supreme Court of the United States
Octoser Term, 1981
No.
DANIEL COMAY,
Petitioner,
vs.
PEOPLE OF THE STATE OF ILLINOIS,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
APPELLATE COURT OF ILLINOIS, FIRST
JUDICIAL DISTRICT
Petitioner, Donald Comay (hereafter, defendant) prays
that a Writ of Certiorari be issued to the Appellate Court
of Illinois, First Judicial District, to review its decision
affirming his convictions.”
* The Appellate Court's order also remanded for sentencing as to
certain counts, an aspect of the cause not presently before this Court
on this petition. See fn. 2, infra.
2
Judgment and Opinions Below
The (unpublished') Order of the Appellate Court of Lili-
nois, First Judicial District, No. 80-423, is set out as Ap-
pendix A, per Rule 21.1(k)(i) of this Court. The order of
the Illinois Supreme Court denying petition for leave to
appeal, No. 54960, is unpublished; a copy is appended
as App. B.
Jurisdictional Statement
On March 17, 1981, the Appellate Court of Lilinois, First
Judicial District, entered its order affirming defendant’s
convictions.* (App. A) Defendant’s timely petition for
leave to appeal was denied by the Supreme Court of Lili-
nois on October 19, 1981. (App. B) This petition to review
the judgment of a state court of last resort in a criminal
case is timely filed within 60 days thereafter. Jurisdiction
of this Court is invoked under 28 U.S.C. § 1257(3) and
Rule 20.1.
Constitutional Provisions and Statutes Involved’
The Sixth Amendment to the United States Constitution
provides, in part:
**In all criminal prosecutions the accused shall enjoy
the right . . . to have compulsory process for obtain-
ing witnesses in his favor... .’’
' The Appellate Court's order is unpublished per Illinois Supreme
Court Rule 23, Ill. Rev. Stat., chap. 110A, sec. 23.
* The Appellate Court's order affirmed the convictions and re-
manded the cause for sentencing upon certain counts in accordance
with directions in the Order; the remand for sentencing is not at
issue in this petition. (See App. A, p. 11.)
* There is no issue in this Petition as to the interpretation of any
Statute.
3
The Fourteenth Amendment to the United States Con-
stitution provides, in part:
‘**Section 1... |NJor shall any State deprive any
person ... of liberty, ... ° without due process of law;
STATEMENT OF THE CASE
Nature of the Case
Defendant was charged in Information No. 79-2239 (Tr.
339-44) with five counts of possession of various controlled
substances. He waived jury trial, and the court found
him guilty as charged, except not guilty on Count 2 (pos-
session of cocaine with intent to distribute). (Tr. 270)
The court sentenced defendant to 10 years imprison-
ment, without specification of the count(s) to which the
sentence applied. (Tr. 314-15)
On appeal, the Appellate Court of Lllinois, First Judi-
cial District, affirmed the convictions, remanding for
sentencing as to Counts 3, 4 and 5. (App. A, p. 11) (The
remand for sentencing is not involved in tais Petition,
which seeks review only of such portion of the Order affirm-
ing the convictions.)
The Supreme Court of Illinois denied petition for leave
to appeal. (App. B)
4
STATEMENT OF FACTS
To the extent that the Appellate Court’s Order (App.
A) contains material to meet the requirements of Rule
21.1(g), such is here incorporated by reference to avoid
unnecessary duplication. The specific facts pertaining to
the Points which follow are:
Basic Facts of Prosecution’s Case
On February 9, 1979, defendant, Daniel Comay, resided
in Apartment 3411 at 505 North Lake Shore Drive, Chi-
cago, Ill. He was employed as a commodities broker and
engaged in the real estate business.
On February 9, 1979, at about 11:00 a.m., defendant we
in bed sleeping in a bedroom. He was sick. Six police
officers arrived with a search warrant. (Tr. 57) In a sec-
ond bedroom were women’s clothes and makeup. (Tr. 124)
Officer Patton testified he did not know how many people
lived in the apartment, (Tr. 125); that in the foyer at the
entrance to the apartment he found a blue suitease (Tr.
60) with two other suitcases next to it (Tr. 64); that within
the closed blue suitcase were items alleged to be contra-
band. (Tr. 61)
Facts re “Chain of Custody”
On direct examination, Officer Patton testified that the
blue suitcase (which allegedly contained contraband) was
inventoried and taken to the crime laboratory. (Tr. 62)
But on cross-examination, he said he thought it was de-
stroyed, and, even maybe left in the defendant’s apart-
ment. (Tr. 136-37)
Of 5 officers, only Patton testified about the suitcase. He
stated that he ‘‘found a blue suitcase in the foyer, as you
entered the apartment,’’ (Tr. 60); ‘‘there were two other
5
suiteases around it.’’ (Tr. 64) Initially, Patton testified
on direct that the suitcase was inventoried by himself and
taken to the crime laboratory:
**Q. Now, after—After the apartment was secured,
what, if anything, did you do with that suitcase?
A. It was taken to the Chicago Police Department
Crime—Crime Laboratory, and the contents of the
suitcase was inventoried, submitted for—
Q. Did you personally take it there?
A. Yes, sir. I did.
Q. And what exactly did you do?
A. I—’’ (Tr. 62) (The last question was never an-
swered.) (Emphasis added.)
On cross-examination, Patton changed his testimony en-
tirely, yet he could not explain where the suitcase was.
Observe the following backtrack from his direct testimony :
*Q. Do you have that suitease in court with you
this afternoon?
A. No, sir. I do not.
Q. All right. Do you know where the suitcase is?
A. No, sir. I believe it was subsequently destroyed,
I believe.
Q. The suitcase was destroyed?
A. lam not sure, sir. I don’t know where the suit-
case is.
Q. Now, did you, yourself, take the suitcase down
to the Crime Lab?
A. No, sir. I believe the suitease remained at the
apartment. The contraband was removed from the
suitcase.
Q. Do you know who took all the contraband from
the suitcase?
A. I did, sir.
Q. You took all the contraband out of the suitcase
and you left the suitcase in the apartment?
A. Yes, sir.
6
Q. Was there any reason why you did not, in fact,
ee or take the suitease back to the station with
ou
4 A. No, sir. There was no reason.’’ (Tr. 136-37)
(Emphasis added.) | : .
The same Officer Patton, who first testified that he turned
the blue suitcase over to the crime laboratory, (Tr. 62),
also testified on cross-examination that he did not know
where the suitcase was, and that (1) he believed it was
destroyed (Tr. 136), but that (2) he then believed the suit-
case remained in the apartment and the alleged contra-
band removed from the suitcase. (Tr. 137)
He could not identify the packages containing the al-
leged narcotics as the same packages which he turned in to
the crime laboratory. After first stating that he took che
suitcase to the police crime laboratory, ‘‘. . . and the con-
tents of the suitcase was inventoried .. .’’ (Tr. 62), he
then filled out a narcotics envelope and submitted the
alleged contraband to the lab for expert analysis. (Tr. 63)
He brought the evidence to court by signing it out from
the Evidence and Recovered Property Section in the sub-
basement at 1121 South State Street, (police headquar-
ters). (Tr. 64)
He then identified a plastic bag as People’s Exhibit 1,
used by the crime laboratory to seal contraband. He did
not put the cover on the exhibit, and it was not sealed at
the time the exhibit was shown to him in court. (Tr. 65)
Another plastic bag containing a white chalky substance
was identified as Exhibit 4, which Officer Patton stated he
first saw in the suitease. When asked by the prosecution
whether it was ‘‘the same bag or is that a similar bag’’ to
that which he had seen on February 9, Patton answered it
was a similar bag. (Tr. 70) Shown Exhibit 5a, Patton
7
testified it was a bag with white tablets in it and when
asked whether he had ever seen the package before, he
said, ‘‘No, sir. I have not seen this package before.’’ (Tr.
71) He was able to read the word, ‘‘Worer 714’’ on one
of the pills, there being 379 tablets contained in People’s
Exhibit 5a. Shown People’s Exhibit 5a by the prosecutor,
Patton testified again it contained white tablets with the
imprint ‘‘Worer 714’’ on the pills. There were 347 tablets
in all in Exhibit 5b.
**Q. Do these tablets appear similar to the ones
that you saw on February 9, 1979?
‘*A. They do, sir.’’ (Tr. 73) (Emphasis added.)
Shown Exhibit 5c, Patton was asked if he had seen that
package before, to which he responded, ‘‘I’ve seen a simt-
lar package, sir.’’ (Tr. 74) (Emphasis added.)
**Q. [By the prosecutor] Do you know whether
the white capsules that are in the Chicago Police De-
partment inventory bags originally were in that bag?
“A. I don’t know for a fact sir. You know,—I
know that, when I inventoried them, I inventoried the
white tablets in a bag, similar to this bag here.’’ (Tr.
74) (Emphasis added.)
Shown People’s Exhibit 6a, the witness stated it was a
manila envelope.
**Q. (By the prosecutor.) Have you seen that en-
velope before; have you seen that particular envelope
before?
“A. No, sir, I haven’t.’’ (Tr. 75) (Emphasis
added.)
Exhibit 6, being one clear plastic bag containing small
purple dots was taken out of 6a.
*“*Q. (By the prosecutor.) Have you seen this bag
on February—did yor see that bag on February 9,
1979 or a bag similar to that?
‘A. The Witness: I saw a bag similar to this,
sir.’’ (Tr. 76) (Emphasis added).
8
Also, with respect to People’s Exhibit 7b and 7c, plastic
bags containing crushed green plant, the witness was
asked whether he saw that plastic bag ‘‘or a similar bag’’
to which the police witness responded that he saw similar
bags. (Tr. 77-78) And the same questions and the same
answers with respect to People’s Exhibits 8 and 9, that he
saw similar packages. (Tr. 78-79)
The parties stipulated that if the Chicago crime lab
chemist, Christine Provost, were to testify, she would state
that on March 23, 1979, she received a sealed package
under Inventory No. 617704, lab case No. 79-100113, from
Jerry Pozin, another chemist. (Tr. 145) She opened the
package on April 3, 1979, removed several plastic bags,
one of which contained white powder and another of which
contained green capsules, identified by Exhibit Q-1. The
contents of both bags were negative for controlled sub-
stances. (Tr. 145)
She found white powder in another plastic bag, identi-
fied as Exhibit Q-2, and the package contained 68.66 grams
of white powder containing cocaine. People’s Exhibit 4
was the same plastic bag containing powder, which was
marked as Exhibit Q-2, and analyzed on April 3, 1979.
From another of the plastic bags, she removed some
white tablets marked ‘‘Rorer 714.’’ The tablets marked
‘*Rorer’’ which had an open ‘‘4’’ were identified as Ix-
hibit Q-3. The tablets marked ‘‘Rorer 714’’ which had a
closed ‘‘4’’ were identified as Exhibit Q-+. An analysis of
a random sample of white tablets, Exhibit Q-3, showed
that they contained Methaqualone. An analysis of a ran-
dom sample of the white tablets identified as Q-4 showed
that the white tablets contained Diazapam. (Tr. 147) She
placed the Q-3 white tablets in a plastic bag, People’s Ex-
hibit 5b. The Q-4 white tablets were put in a plastic bag,
9
People’s Exhibit 5a. (Tr. 147) The plastic bag which con-
tained the white tablets marked ‘‘Rorer 714’’ and marked
as Exhibit 5c, was the same plastic bag which contained
the white tablets she previously marked as Exhibits Q-3
and Q-4 on April 3, 1979.
The three bags which contained plant material were
identified as her Exhibit Q5. One of the bags contained
524.3 grams, another 578.7 grams, and a third bag, 103.0
grams of Cannabis Sativa, commonly known as marijuana.
(Tr. 148) The plastic bag containing the plant material,
People’s Exhibit 7a, b, and ¢, were the same plastic bags
which contained the plant material which she marked as
Q-5 on April 3, 1979. (Tr. 148)
It was further stipulated that Provost would testify that
on April 3, 1979 all these exhibits were returned ‘‘to the
above-deser:)ed package’’ and placed in a locked area
until Apri! 19, 1979, when she removed the package from
the locked area.
She then removed a plastic bag containing purple tablets
which had been analyzed on April 3, 1979. This bag was
marked as Q-6 on April 3, 1979. She counted 27 purple
tablets and analyzed 23 of them and concluded the tablets
contained Lysergic Acid Diethylamide, commonly known
as LSD, with a total weight of 0.20 grams. The plastic
bag which contained the purple tablets marked as People’s
Exhibit 6b, was the same plastic bag which contained pur-
ple tablets which she previously marked as Q-6. (Tr. 149)
She further would state that all the plastic bags were
returned to the package under Invento.y No. 617704, and
the lab case, No. 79-100113-C. She signed and sealed the
package and placed it in a box marked ‘‘incomplete analy-
sis.”’ (Tr. 149-50)
10
Facts re “Constructive Possession”
There were two bedrooms in the apartment. (Tr. 124-
25) For some time until shortly before February 9, 1979,
Kathy Bennett had been the defendant’s girl friend, (Tr.
214), and still had her own key to defendant’s apartment.
(Tr. 216; 219) Her clothes were in the second bedroom of
the apartment. (Tr. 124; 221) Also having keys to defen-
dant’s apartment were his father, Morris Comay; Edward
Marshall, with whom defendant composed music, (Tr. 231) ;
Arlene Benns, defendant’s cleaning lady, (Tr. 193); and
building personnel. (Tr. 57)
Defendant testified that in January of 1979 his rela-
tionship with Kathy Bennett deteriorated. That because
of her causing him trouble,‘ he told her to get out of his
life, (Tr. 218), and that she refused to return the apart-
ment key to him. (Tr. 219)
Defendant’s cleaning lady, Arlene Benns, cleaned the
defendant’s apartment every Thursday for two years. (Tr.
193) On February 8, 1979, she cleaned the apartment, ex-
cept for the bedroom in which defendant was asleep; she
did not see a blue suitcase anywhere. During the entire
period of time that she had been cleaning the defendant’s
apartment, she had never seen any such blue suitcase. (Tr.
203)
Lynn Hostetler testified that from the evening of Feb-
ruary 8 to the morning of February 9, 1°79, she was with
the defendant in his apartment, and when she left about
7:45 a.m. on February 9, she never saw any suitcases sit-
ting in the foyer. (Tr. 175-77)
* The court sustained the State's objections to defendant's attempt
to show that she had previously made false accusations against
defendant to the police. (Tr. 217-18) See Point 3, pp. 26-28, infra.
11
The defendant testified that he had never seen the suit-
case described by the officer in his apartment and that such
suitcase was not in his apartment on the morning of the
9th. (Tr. 230)
The alleged contraband was not visible as such, but was
contained within a closed suitcase. (Tr. 61)
Facts re Exclusion of Relevant Defense Evidence
Defendant testified that in January of 1979, his relation-
ship with Kathy Bennett, his former live-in lady friend,
deteriorated, and that because of her causing him trouble,
he told her to get out of his life. (Tr. 218) She refused to
return the apartment key to him. (Tr. 219)
The trial court sustained the State’s objections to de-
fendant’s attempts to introdace evidence that Ms. Bennett
had previously made false accusations against defendant
to the police, and that due to her jealousy of defendant’s
relationship with other females, she may have ‘‘planted’’
the alleged contraband in defendant’s apartment. (Tr. 217-
18)
The relevance of this proffered evidence is clear, when
one considers that the finding of possession herein is based
on constructive, rather than actual, possession, (Tr. 268-
69; App. A, p. 7), and that there is extensive evidence
that others had access to the premises, (see Facts re ‘‘Con-
structive Possession,’’ pp. 10-11, supra), and that the al-
leged contraband was not visible as such but was contained
within a closed suitease. (Tr. 61)
Raising the Federal Questions Below [per Rule 21.1(h)]
Re Chain of Custody
Defendant argued in the trial court that the evidence
was wholly insufficient to connect the drugs tested to the
defendant, in that there was a total failure to prove ‘‘chain
12
of custody.’’ The court nonetheless found defendant guilty
as charged.
On appeal, defendant argued in the Appellate Court
that the evidence did not sustain the conviction because of
the failure to prove chain of custody of the drugs. While
stating that the point was waived for failure to object to
the foundation for admission of the drugs, and because
defendant had stipulated to the contents of the chemist’s
report, (App. A, pp. 9-10), the court proceeded to rule that,
on the facts, an unbroken chain of custody was established.
(App. A, p. 10)
On Petition for Leave to Appeal, defendant argued in
the Supreme Court of Illinois that his convictions should
be reversed for insufficiency of proof that the drugs in
court were the same as those Officer Patton allegedly found
in the missing suitcase. Leave to appeal was denied.
(App. B)
Re Constructive Possession
Although defendant argued in the trial court that the
evidence was insufficient to demonstrate that he was in
‘constructive possession’’ of the drugs—and there was
no question but that there was no actual possession by
defendant, so that the prosecution’s case depended on
constructive »ossession—the trial court found that defen-
dant had constructively possessed the drugs. (Tr. 268-69)
On appeal, defendant argued that the trial court’s use
of an inference of possession based on defendant’s control
of the premises was improper, since other facts and cir-
cumstances (including access of others to the premises)
counteracted this inference and raised a reasonable doubt
of his guilt. The Appellate Court ruled the evidence was
sufficient to establish this element (possession) of the of-
fenses. (App. A, pp. 7-9)
13
On Petition for Leave to Appeal, defendant argued that
the evidence was insufficient to establish constructive pos-
session and that the inference used by the trial court was
improper; leave to appeal was denied by the Supreme
Court of Illinois. (App. B)
Re Exclusion of Relevant Defense Evidence
The trial court sustained the State’s objections to de-
fendant’s attempt to introduce the evidence in question.
(Tr. 179-82; 217-19)
On appeal, defendant argued that the trial court erro-
neously excluded relevant evidence corroborative of his
theory of the defense. The Appellate Court determined
that failure of the defense to make a formal offer of proof
as such prevented it from deciding on anything other than
speculation as to the relevance of the proposed evidence.
(App. A, p. 10)
In his Petition for Leave to Appeal, defendant argued
that exclusion of this evidence violated his federally pro-
tected constitutional right to present evidence on his own
behalf, and that the Appellate Court improperly applied
the formalistic requirements of ‘‘offer of proof’’ in a bench
trial where there was no question as to what evidence was
being tendered. The Supreme Court of Illinois denied
leave to appeal. (App. B)
14
REASONS FOR GRANTING THE WRIT
There are three important questions arising in this erim-
inal prosecution that warrant the grant of Certiorari. In
differing ways, each question reflects a serious fault in the
administration of the criminal justice system of the several
States. These faults of constitutional dimension can and
should be reviewed and corrected by this Court.
1. The decision below seriously erodes the due process
standards relative to the State’s burden to prove every
element of the offense beyond a reasonable doubt, In
Re Winship, 397 U.S. 358, by finding that the nature
of the substances had been established despite a com-
plete failure of proof of “chain of custody.” This Court
should grant certiorari to clarify the appicability of
the due process aspects of Jackson v. Virginia, 443
U.S. 307, to a State bench trial, and to speak to the evi-
dentiary requirement of proof of a continuous “chain
of custody” of alleged contraband as an essential in-
gredient of proof of the nature of the substance tested.
Under the due process standard recently set out by this
Court in Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560
(1979), incorporating principles expressed in In Re Win-
ship, 397 U.S. 358, 361-64, 25 L.Ed.2d 368, 373-75 (1970),
a conviction cannot stand if, taking the evidence most fa-
vorably to the government, no reasonable jury could have
found defendant guilty as to each element of the offense.
Id. at 324, 61 L.Ed.2d at 576-77. The case at bar involves
application of this standard to a bench trial.
Here, the prosecution failed to establish the ‘‘chain of
custody’’ of the evidence which defendant has been found
guilty of having possessed, to such extent that, based on
15
the evidence of record, no reasonable finder of fact could
have found that the substances seized in defendant’s apart-
ment were in fact the same substances tested by the chem-
ist and produced in the courtroom.
The facts relevant to this argument are set out at pp.
4-9, supra.
On these evidentiary facts, clearly no rational fact-finder
could have found that the substances the chemist said she
received for testing were the same substances allegedly
possessed by defendant.
. 7 *
The prosecution’s burden to prove a continuous chain
of possession of alleged contraband is essential to its case.
While the specific topic—chain of custody—apparently
has not been addressed by this Court, the various federal
Courts of Appeals uniformly have determined that proof
of a continuous chain of custody is essential, where the
nature of substance in question is an element of the prose-
cution’s case.
In Novak v. District of Columbia, 160 F.2d 588 (D.C. Cir.
1947), the reviewing court reversed defendant’s conviction
where,
‘the laboratory records and the chemist’s testimony
respecting the analysis were not properly admissible
in evidence because the . . . [prosecution] failed suffi-
ciently to identify the sample from which the analyses
were made as being that sample taken from appellant
..» LNJo effort was made to hand to the police officer
.. . the bottle the chemist had used to see if he could
identify it as the bottle he had labeled and initialed.
There is missing a necessary link in the chain of iden-
tification.’’ Id. at 588-89. (Emphasis added.)
Accord, Smith vy. United States, 157 F.2d 705 (D.C. Cir.
1946), clarifying that where tangible evidence is inadmis-
sible because insufficiently identified, there is a failure of
16
proof as to the issue to which such evidence pertained, re-
quiring reversal. Smith reversed a robbery conviction for
insufficient ‘‘chain of custody’’ evidence as to certain items
allegedly stolen.
While most of the cases discussing this principle have
affirmed upon finding that the particular facts satisfied the
‘chain of custody’’ requirement, a comparison of the facts
of those cases with those of the case at bar is persuasive
that the requirement has not been met here. See, ¢.g.,
United States v. Brown, 482 F.2d 1226 (8 Cir. 1973);°
United States v. Williams, 544 F.2d 1389, 1391 (8 Cir.
1976); United States v. Santiago, 534 F.2d 768 (7 Cir.
1976) ;° accord, United States v. S. B. Penick & Co., 136
F.2d 413, 415 (2 Cir. 1943); Gallego v. United States, 276
F.2d 914, 917 (9 Cir. 1960); Brewer v. United States, 353
F.2d 260, 262 (8 Cir. 1965); United States v. McKinney,
631 F.2d 569 (8 Cir. 1980); United Siates v. Jackson, 482
F.2d 1264, 1266-67 (8 Cir. 1973).’
Although the Illinois reviewing courts acknowledge and
purportedly follow this rule, reversing where the evidence
fails to connect the material analyzed by the chemist with
the substance allegedly seized from defendant—see, ¢.g.,
5 “The criteria governing admission of exhibits into evidence is
that there must be a showing that the physical exhibit being
offered is in substantially the same condition as when the crime
was committed.” /d. at 1228.
®* “The purpose of the chain of custody rule is to insure that the
substance offered into evidence is in substantially the same con-
dition as when it was seized.” /d. at 769.
“The prevention of tampering with or misidentification of evi-
dence is vital to the admissibility of that evidence at trial.”
Id. at 1266.
17
People v. Maurice, 31 Ill.2d 456, 202 N.E.2d 480 (1964) ;*
People v. Scott, 22 Ill.App.3d 770, 317 N.E.2d 737 (1 Dist.
1974) ;* People v. Judkins, 28 Ill. 2d 417, 192 N.E.2d 845
(1963) ; People v. Resketo, 3 Ill.App.3d 633, 279 N.E.2d 432
(1 Dist. 1972)—the Appellate Court’s manner of applying
the rule in this case operates to deprive defendant of due
process of law by finding that the trial court was correct
in upholding proof of chain of custody here, on these facts.
The reviewing court has completely missed the point.
So what that ‘‘there is no question in the case at bar
that the substances tested were actually drugs.’’? (App.
A, p. 10) The gist of defendant’s position is, not that the
substances tested were not (or might not have been) actu-
ally drugs; rather, we maintain that the substances tested
were not those allegedly taken from defendant’s apart-
ment. (See pp. 4-9, 14-15, supra.)
Here, the raid on defendant’s apartment occurred on
February 9, 1979, and the chemist received and tested cer-
tain substances on March 23, 1979. (App. A, p. 4) There
is no evidence whatsoever as to the whereabouts of the
packages to which Officer Patton testified during the inter-
vening month-and-a-half, or even to ‘‘standard procedure’’
at the Crime Lab.
* Reversing where “we have no link, either by identification or
continuity of possession, between the heroin in evidence and the de-
fendant.” 202 N.E.2d at 481.
® Reversing for failure to establish a chain, stating that in a prose-
cution involving narcotics or dangerous drugs, “the evidence must
show that the substance is that which the State purports it to be
and that it is the same substance which was taken from the defen-
dant’s possession.” 317 N.E.2d at 738.
18
The Appellate Court’s sole solace to justify using such
evidence to convict is the waiver ‘‘dodge.’’ Because ‘‘de-
fense counsel did not object to the foundation for admis-
sion of the narcotics at trial or raise the issue in his post-
trial motion,’’ the court deems the point waived. (App. A,
pp. 9-10)
However, the issue was joined, for the prosecutor recog-
nized that he had to meet the burden of proving chain of
possession, specifically arguing that the evidence as to
**chain’’ was sufficient. (Tr. 258-59) That the chemist’s tes-
timony was stipulated to merely means that the parties
agreed that if the chemist testified, the testimony would
be as stipulated. This courtesy as to the content of the
chemist’s testimony does not operate as a waiver of the
requirement that the chain of possession be established.
Likewise, defendant’s failure to object to admission of the
evidence does not constitute waiver of the State’s obliga-
tion to establish that the substance tested was the same
substance as was taken from the defendant’s apartment."”
In People v. Maurice, supra, the prosecution contended that any
discrepancy as to the chain of custody was remedied by a stipulation
as to the chemist’s testimony. The Illinois Supreme Court held it
could not be assumed, from such stipulation, that the chain of cus-
tody had been established :
“We need only look to the substantial numbers of narcotic
cases on our docket in recent years to know that crime labora-
tory analysis of material suspected to contain narcotics is a
frequent occurrence in which identification errors could occur,
and that continuity of possession or positive identification is
therefore necessary to qualify such material or the results of
analyses for admission into evidence. The duty of the State
to prove defendant's guilt beyond a reasonable doubt cannot
be assisted by judicial assumption that a stipulation mistakenly
stated the facts through the inadvertence of the representative
of the People. Admission of the heroin into evidence without
positive identification or continuity of possession was error.”
202 N.E.2d at 481-82. (Emphasis added.)
19
From the facts as summarized at pp. 4-9, supra, it is
irrational to find that Officer Patton and chemist Provost
were testifying about the same substances. Patton could
not identify the packages containing the alleged contra-
band as the same packages which he turned over to the
crime laboratory.
Where, as here, possession of contraband is the grava-
men of the offense, the prosecution’s failure to establish a
continuous chain of possession, or to show that the sub-
stance seized is the same as that in court, (identity of sub-
stance), is fatal to the case against the defendant.
Certiorari should be allowed so that this Court may
speak to the evidentiary requirements—rooted in due pro-
cess of law—concerning chain of custody of evidence.
On certiorari, this Court should also deem the standards
of Jackson v. Virginia, supra, as to the due process require-
ments of sufficiency of the evidence in State criminal trials,
applicable to bench trials.
For total failure to prove chain of custody, and because
Officer Patton could not and did not identify the drugs in
court as those he allegedly found in the missing suitcase
supposedly found in defendant’s apartment, defendant’s
convictions violate due process of law per Jackson vy. Vir-
ginia, and should not be permitted to stand.
20
2. The decision below undermines the due process stan-
dards relative to the State’s burden to prove every
element of the offense beyond a reasonable doubt, per
In Re Winship, 397 U.S. 358 and Jackson v. Virginia,
443 U.S. 307, and with respect to the doctrine of Sand-
strom v. Montana, 442 U.S. 510, invalidating any shift
of the State’s burden of proof. Here, on the facts, an
unconstitutional presumption of constructive posses-
sion from the fact that the contraband was found in
an apartment occupied by defendant was utilized to
justify the finding of possession, in violation of prin-
ciples set out in Leary v. United States, 395 US. 6.
Certiorari should be allowed so that this Court may
enforce upon the States the due process requirements
expressed in such decisions.
Jackson v. Virginia, 443 U.S. 307, 51 L.Ed.2d 560 (1979),
holds that due process requires reversal of a State convic-
tion if no reasonable jury could have found defendant
guilty as to each element of the offense. Id. at 324, 61 L.Ed.
2d at 675-77, following Jn Re Winship, 397 U.S. 358, 361-
64, 25 L.Ed.2d 368, 373-75 (1970).
Under Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed.2d
39 (1979), dealing with an instruction permitting the jury
to draw a presumption against a defendant as to an cle-
ment of the offense, an instruction which could have the
forbidden effect of shifting to the defendant the burden of
proof on any element of the offense violates due process
of law.
And in Leary v. United States, 395 U.S. 6, 23 L.E.d.2d 57
(1969), Your Honors held that a presumption is constitu-
tionally invalid under due process if the fact proved bears
no rational relationship to the fact presumed.
Applying these principles to defendant’s bench trial upon
the facts of record at bar, defendant's convictions offend
21
due process, because from the evidentiary facts (as set out
at pp. 10-11, supra), no rational trier of fact could find,
beyond a reasonable doubt, that defendant was in con-
structive possession of the alleged contraband. Only by
applying a presumption of possession arising from the
fact that the material was found in an apartment defen-
dant occupied—which presumption is rnconstitutional un-
der the principles of Sandstrom (prohibiting shifting the
burden of proof to defendant) and of Leary (invalidating
presumptions which lack rationality)—couid the evidence
be said to prove defendant’s guilt of constructive posses-
sion beyond a reasonable doubt.
And, per the principles of Jackson, upon those facts,
defendant’s convictions violate due process and should be
reversed.
Having found that defendant had ‘‘no direct personal
possession’’ (Tr. 268), the trial court erroneously con-
cluded there was knowing constructive possession because
the suitcase was found in his apartment and ‘‘we cannot
avoid the complete control that defendant has over his
apartmert. He is the only one there.’’ (Tr. 269). The
court’s ruling was errcueous because, although the exis-
tence of drugs ‘‘on the premises under control of defen-
dant—in and of itself, gives rise to an inference of knowl-
edge and possession by him,’’ this inference is insufficient
to convict where there are ‘‘other facts and circumstances
which might leave in the mind of the court, where a jury
has been waived, a reasonable doubt as to his guilt.’’ Peo-
ple v. Nettles, 23 IL.2d 306, 178 N.E.2d 361, 363 (1976).
Federal decisional law as to the quantum and quality of
proof required to establish constructive possession mili-
tates against the position taken by the State courts here.
See, e.g., Arellanes v. United States, 302 F.2d 603, 606 (9
22
Cir. 1962) ; United States v. Batimana, 623 F.2d 1366, 1369
(9 Cir. 1980); United States v. Thomas, 453 F.2d 141, 143
(9 Cir. 1971); United States v. Landry, 257 F.2d 425 (7
Cir. 1957). Accord, see People v. Connie, 52 Ill.App.2d 221,
201 N.E.2d 641 (1 Dist. 1964); People v. Wolski, 27 Tll.App.
3d 526, 327 N.E.2d 308 (1 Dist. 1975).
Here, the other facts and circumstances raise a reason-
able doubt as to defendant’s guilt.
When police entered defendant’s apartment pursuant to
a warrant, they found him asleep in a back bedroom. (Tr.
57) Defendant’s father, a friend, an ex-girlfriend, and a
housekeeper (in addition to routine building maintenance
personnel) all had keys to the apartment. (Tr. 218-19, 231)
Consistent with defendant’s theory that others had access
to the apartment, negating that he possessed the contra-
band (allegedly) found in a closed blue suitease which
police allegedly found in the foyer of the apartment,"'
women’s clothing and makeup were found in the second
bedroom of the apartment. (Tr. 124)
Significantly, there is no fingerprint evidence to connect
defendant with the (supposed) contents of the suitcase or
even with the suitcase itself. (App. A, p. 3)
All the evidence against the defendant is insufficient to
prove beyond a reasonable doubt that he possessed the
contraband (allegedly) found in the blue suitease. The
court acknowledges that the conviction depends upon con-
structive, not actual possession. (App. A, p. 7) Yet, while
accessibility of the apartment to numerous other persons
"We say “allegdly” because of conflicting testimony re this
matter. See pp. 4-6, supra.
23
is conceded—as is the fact that the contraband was in a
closed suitcase not shown to have borne defendant’s finger-
prints—the court amazingly has concluded that there was
sufficient credible evidence from which the trier of fact
could find possession by defendant beyond a reasonable
doubt. This conclusion flies in the face of the facts as
measured by the relevant case law.
Officer Patton alone testified that the contraband was
recovered from the blue suitcase found along with several!
other suitcases in the foyer of defendant’s apartment.
(App. A, pp. 1-3; see pp. 4-6, supra.) The Appellate Court
was at a loss why defendant made so much of the apparent
loss of the suitcase supposedly containing the drugs for
possession of which defendant was convicted. (App. A, p.
9) After all, says the Court,
‘‘defendant .. . was not charged with possession of
a blue suitease ; rather, he was charged with possession
of narcotics... .’’ (App. A, p. 9)
Of course he was not charged with possession of a blue
suitease ; but he was charged with and convicted of posses-
sion of contraband found, according to police, in the blue
suitcase in defendant’s apartment.
In this context, the court’s concomitant dismay at our
‘‘falsus in uno, falsus in omnibus’’ argument—that is,
that because the officer’? directly contradicted himself as
to what became of the suitease, his testimony was not to
be believed in other respects either—appears fatuous.
12 Officer Patton, of the six officers who participated in the raid,
was the only officer to testify about the “suitcase”; thus his testi-
mony stands uncorroborated.
24
Taking Officer Patton’s highly suspect testimony" to-
gether with the accessibility of the apartment to others"
and the fact that the contraband was concealed within the
suitcase,’* rather than perceptible from outside,"* the total-
18 Officer Patton’s testimonial “flip-flop” between taking the suit-
case to the Chicago Police Department Crime Laboratory and in-
ventorying it, (Tr. 62), and leaving it in the apartment, (Tr. 137).
raises serious doubts [to say the least] as to the officer's credibility.
(Compare direct at Tr. 60-64 with cross at Tr. 136-37. See pp.
4-6, supra.)
The situation here is comparable to that in People v. Catavdella,
31 I1.2d 382, 202 N.E.2d 1 (1964), where the court reversed,
stating the conflicting police testimony “can hardly be explained as
a mere mistake.” 202 N.E.2d at 4. See also People v. Quintana,
91 Ill.App.2d 95, 234 N.E.2d 406 (1 Dist. 1968).
1 Accessibility of the premises to others precludes a finding of
guilt beyond a reasonable doubt based on these facts. See United
States v. Landry, 257 F.2d 425 (7 Cir. 1958); United States v.
Thomas, 453 F.2d 141, 143 (9 Cir. 1971); Arrelanes v. United
States, 302 F.2d 603, 606 (9 Cir. 1962) ; United States v. Batimana,
623 F.2d 1366, 1369 (9 Cir. 1980) ; People v. Wolski, 27 Ill_App.3d
526, 327 N.E.2d 308 (1 Dist. 1975) ; People v. Ireland, 38 Ill.App.3d
616, 348 N.E.2d 277, 280 (3 Dist. 1976); People v. Ridley, 59
Il App.3d 164, 376 N.E.2d 43 (1 Dist. 1978).
1 Moreover, any inference of guilt which arguably could be drawn
merely from defendant’s presence in the apartment where the suit-
case supposedly was found is negated by the police's failure properly
to inventory and retain the suitcase allegedly containing the contra-
band. See People v. Faulkner, 82 Ill.App.2d 54, 226 N.E.2d 467
(1 Dist. 1967).
1 See People vy. Binns, 27 Ill.App.3d 978, 327 N.E.2d 369, 371
(1 Dist. 1975), reversing, although items containing contraband
were found in defendant’s apartment, where—as here—defendant
was asleep when the police arrived, and “there is nothing in the
record to indicate that the . . . [items containing contraband| were
opened or their contents could otherwise be seen.” (In Binns, the
contraband was in envelopes. )
25
ity of the evidence is wholly insufficient to establish defen-
dant’s guilt beyond a reasonable doubt.
Upon the facts of record at bar, there is only innuendo
and speculation of defendant’s guilt, which is insufficient
to overcome the presumption of innocence. Due process
requires proof beyond a reasonable doubt. In Re Winship,
397 U.S. 358, 361-64, 25 L.Ed.2d 368, 373-75 (1970) ; United
States v. Thomas, 453 F.2d 141, 143 (9 Cir. 1971); United
States v. Diggs, 527 F.2d 509, 513 (8 Cir. 1975).
Certiorari should be allowed so that this Court may
speak to the constitutionally permissible extent of the in-
ference or presumption which may be drawn against one
accused of a possessory crime merely from his being found
in the same apartment with unexposed contraband, where
the premises, albeit his own, were accessible to others.
Application of this presumption here, upon these facts,
violates due process of law as measured by principles set
out in Leary, Sandstrom, and Jackson, supra.
Accordingly, defendant’s convictions should be reversed
for insufficiency of the evidence to establish possession, an
essential element of the offenses.
'T The government's proof may not be furnished by mere specula-
tion or conjecture. In United States v. Diggs, 527 F.2d 509, 513
(8 Cir. 1975), the court, reversing, said:
“While the facts proved by the government were certainly
suspicious, a jury is not justified in convicting a defendant
on the basis of mere suspicion, speculation or conjecture.”
26
3. The decision below seriously erodes the federally pro-
tected constitt ‘ional right to present evidence rele-
vant to the defense, approving exclusion of evidence
supporting defendant's defense theory on the spurious
basis that no formal offer of proof was made. Certio-
rari should be allowed to insure that the States do not
apply their own procedural rules to thwart due process
principles concerning proffered defense evidence.
The trial court sustained the State’s objections to defen-
dant’s attempt to show that Kathy Bennett, defendant’s
former live-in lady friend, had previously made false aceu-
sations against him to the police. (Tr. 179-82; 217-18) De-
fendant sought to demonstrate that due to her jealousy
concerning defendant’s relationships with other females,
Ms. Bennett, who already had made false accusations
against him to the police, may have ‘‘planted’’ the evi-
dence in his apartment. Defendant testified that in Janu-
ary of 1979, his relationship with Ms. Bennett had deterio-
rated ; that he told her to get out of his life, and that she re-
fused to return the apartment key. (Tr. 218-19) (See p.
1l, supra.)
A defendant charged with a crime in the State courts
has a federally protected constitutional right to present
evidence on his own behalf. Chambers v. Mississippi, 410
U.S. 284, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388
US. 14, 18 L.Ed.2d 1019 (1976); see Holt v. Virginia, 381
U.S. 131, 136, 14 L.Ed.2d 290, 293 (1965).
‘*Few rights are more fundamental than that of an
accused to present witnesses in his own defense.’’
Chambers, supra, at 302, 35 L.Ed.2d at 312.
It is clear—especially on the facts of this case-—that
evidence that someone else may have placed the contra-
band where it was found by the police is extremely rele-
27
vant. See People v. Binns, 27 Ul.App.3d 978, 327 N.E.2d
369, 371 (1 Dist. 1975); People v. Ireland, 38 Ill.App.3d
616, 348 N.E.2d 277, 280 (3 Dist. 1976).
In United States v. Vole, 435 F.2d 774 (7 Cir. 1970), the
Court of Appeals recognized the validity of the defense
that a defendant had been ‘‘framed,’’ reversing where the
trial court refused so to instruct as to defendant’s theory
of the case.
In this bench trial, it was clear beyond peradventure
what the nature of the proposed evidence would be. In
the face of the reviewing court’s obvious grasp of the
argument (that the ex-girfriend had ‘‘planted’’ the evi-
dence), merely to state the supposed rule [re offer of proof |
justifying exclusion is to reveal its inapplicability here.
In a jury trial, the argument might have some merit; but
here, before the trial court sitting without a jury, strict
adherence to any such rigid requirement is nonsensical.
Moreover, contrary to the reviewing court’s assertion
that there was no offer of proof or explanation of the
proposed testimony’s relevance, a careful reading of the
record demonstra .s that sufficient allusion, at the very
least, was made to the ‘‘plant’’ or ‘‘frame’’ defense so as
to negate this.
* * *
Certiorari should be aliowed so that this Court may
enforce the due process requirement that an accused must
be permitted to present relevant defense evidence, with
special attention to the application of State procedural rules
which unreasonably interfere with the exercise of such
right. Particularly here, in this bench trial and in cir-
cumstances where there is no genuine controversy as to
what evidence is being proffered, adherence to such for-
malistic requirements results in a defendant being de-
prived of a most basic constitutional right.
28
In view of the paucity of the evidence as to the chain of
custody and as to defendant’s possession, it cannot be
said that the improper exclusion of the proffered defense
evidence did not affect the trial judge’s decision to find
defendant guilty. Accordingly, even if this Court dis-
agrees with the conclusions pressed in Points 1 and 2,
supra, respecting the insufficiency of the evidence, defen-
dant’s convictions should be reversed for improper exclu-
sion of relevant defense evidence in violation of defen-
dant’s constitutional right, and remanded with appropri-
ate directions.
CONCLUSION
For any or all of the foregoing reasons, the Petition for
Certiorari should be allowed. And, upon consideration of
the merits, defendant’s convictions should be reversed
for insufficiency of the evidence (Points 1 and 2), or,
alternatively, reversed and remanded with appropriate
directions for improper exclusion of relevant defense evi-
dence (Point 3).
Respectfully submitted,
Juuivs Lucius EcHees
Freverick F. Conen
CAROLINE JAFFE
Attorneys for Petitioner
Ly OS. as re eee gh siete |
MOTs ape
“ oar
APPENDIX A
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
80-423
PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
vs.
DANIEL COMAY,
Defendant-Appellant.
Appeal from the Cireuit Court of Cook County.
Honorable Rosert J. Coiiixs, Judge Presiding.
ORDER DISPOSING OF APPEAL
UNDER SUPREME COURT RULE 23
Defendant Daniel Comay was arrested on February 9,
1979, in his apartment in Chicago and charged with five
counts of possession of an unlawful substance. Follow-
ing a bench trial, he was found guilty and sentenced to
10 years’ imprisonment. On appeal, he raises essentially
four contentions: whether constructive possession of the
narcotics was proven beyond a reasonable doubt; whether
a proper chain of evidence of the seized drugs was estab-
lished at trial; whether the trial court improperly excluded
hearsay testimony attributed to the defendant’s former
girl friend; and whether defendant’s sentence was illegal
and excessive.
Chicago police officer Paris Patton testified that on Feb-
ruary 9, 1979, he was assigned to the Vice Control Division,
App. 2
narcotics section. Pursuant to a search warrant, Patton,
accompanied by other police officers, went to defendant’s
residence at 11:30 a.m. that morning. Patton knocked at
the door and, when there was no answer, waited approxi-
mately 1% hours until a maintenance man appeared who
could let him in the apartment. The door opened into a
foyer which led into the living room. From the living
room a hallway extended to the back bedroom. The
police found defendant in the back bedroom asleep. Of-
ficer Patton woke defendant, who appeared startled. Pat-
ton showed him the search warrant and advised him of
his constitutional rights. When Patton asked defendant
if there were any narcotics in the apartment, defendant
stated, ‘‘Follow me,’’ and led Patton to an end table in
the living room. The end table was in fact a safe, which
held a ‘‘clear, white plastic bag containinig a white pow-
dered substance.’’ Patton asked defendant if there were
any other narcotics in the apartment. Defendant re-
sponded, ‘‘No.’’ Patton, however, continued the search,
and in the course of it, found a blue suitcase which had
within it a clear plastic bag containing ‘‘a white powdered
substance,’’ a clear plastic bag containing ‘‘green and
white tablets,’’ a clear plastic bag containing ‘‘some
purple dots,’’ a clear plastic bag containing ‘‘a quantity
of white tablets,’’ and three clear plastic bags containing
‘‘erushed green marijuana plant.’’ Patton then closed
the suitcase and, after placing Comay under arrest, took
the suitcase directly to the Chicago police crime laboratory.
Once there, Patton completed a narcotics envelope, detail-
ing the contraband that had been confiscated. He inven-
toried the items and then turned the suspected narcotics
over to the crime laboratory. He also testified to hand-
carrying the inventoried package to court after signing
it out of the Evidence and Recovered Property section at
the police department.
App. 3
Officer Patton identified People’s Exhibit No. 1 as the
type of large plastic bag which the crime laboratory uses
to cover seized property once the technicians have com-
pleted the analysis. The large plastic bag had a cord tied
around it. This cord was removed by Patton in court.
Inside the plastic bag was a brown paper bag with a
manila ‘‘narcotics’’ envelope attached. Patton identified
it as the Chicago police department evidence envelope to
which he had affixed his signature. Patton also identified
the sealed brown paper bag bearing his initials as the
one into which he had inserted the suspected narcotics.
Pation then removed the items which were contained in
the paper bag. He identified a plastic bag containing a
chalky white substance as one of the items recovered from
the suitease. In reference to a bag of white tablets, Pat-
ton stated that although he had not seen the particular
bag before (marked ‘‘Chicago Police Department, CR’’),
the tablets within, which had markings of ‘‘Worer 714’’
[sic], appeared similar to those that he had inventoried
following the arrest. The envelopes holding the tablets
were marked with the abbreviation of the chemistry sec-
tion. Patton also stated that he had inventoried each of
the seized items and placed them in plastic bags similar
to those in which each item was now contained; he had
then submitted the items for expert analysis to the crime
laboratory.
On cross-examination, it was established that the white
substance given to the policemen by Comay was not shown
to be a narcotic by the crime laboratory’s analysis. Pat-
ton aiso testified that the contraband was removed from
the suitcase at the apartment and taken to the crime
laboratory. He stated that he believed that the suitcase
itself had remained at the apartment. He admitted that
he had not tested for fingerprints on the suitcase and
stated that he had found no identification in the suitcase.
App. 4
The parties then stipulated that if Christine Provost, a
chemist assigned to the Chicago police department, were
present she would testify as follows: that she received
a sealed package on March 23, 1979; that she opened and
removed several plastic bags; that she analyzed the con-
tents of two of these bags; and that the contents tested
negatively for narcotic substances. The parties further
stipulated that she would testify that tests on the other
substances found in the plastic bags revealed that one con-
tained 68.66 grams of cocaine (the bag marked ‘‘ People’s
Exhibit No. 4’’ would be identified by Provost as the same
plastic bag containing powder which Provost marked as
Exhibit Q-2 and analyzed as cocaine); that one contained
white tablets marked ‘‘Rorer 714’’ (she separated these
tablets into two groups dependent upon whether the ‘‘4’’
in ‘‘Rorer 714’’ had an open or closed ‘‘4’’; the ones with
the open ‘‘4’’ were found to be Methaqualone; the ones
with the closed ‘‘4’’ were discovered to be Diazepam) ;
that three contained plant material weighing 524.3 grams,
578.7 grams, and 103 grams respectively (analysis proved
the contents of the bags to be cannabis sativa); and that
one contained purple tablets (she tested 23 of the 27 tablets;
each contained lysergic acid diethylamide: LSD). During
those periods when Provost was not actually involved in
testing the substances, she would return the substances to
the package in which they were originally inventoried and
the package was placed in a locked area. As with the
package that contained the cocaine, it was stipulated that
Provost would testify that the bags marked People’s
Exhibits 5a, 5b, 5c, 7a, 7b, 7e, and 6b, were the same as
those that she marked Q-4 (Diazepam), Q-3 (Methaqua-
lone), Q-5 (cannabis, People’s Exhibits 7a, 7b, 7c), and
Q-6 (lysergic acid diethylamide), while in the process of
testing the substances. Another stipulation, from Spiros
App. 3
Officer Patton identified People’s Exhibit No. 1 as the
type of large plastic bag which the crime laboratory uses
to cover seized property once the technicians have com-
pleted the analysis. The large plastic bag had a cord tied
around it. This cord was removed by Patton in court.
Inside the plastic bag was a brown paper bag with a
manila ‘‘narcotics’’ envelope attached. Patton identified
it as the Chicago police department evidence envelope to
which he had affixed his signature. Patton also identified
the sealed brown paper bag bearing his initials as the
one into which he had inserted the suspected narcotics.
Patton then removed the items which were contained in
the paper bag. He identified a plastic bag containing a
chalky white substance as one of the items recovered from
the suitcase. In reference to a bag of white tablets, Pat-
ton stated that although he had not seen the particular
bag before (marked ‘‘Chicago Police Department, CR’’),
the tablets within, which had markings of ‘‘Worer 714’’
[sic], appeared similar to those that he had inventoried
following the arrest. The envelopes holding the tablets
were marked with the abbreviation of the chemistry sec-
tion. Patton also stated that he had inventoried each of
the seized items and placed them in plastic bags similar
to those in which each item was now contained; he had
then submitted the items for expert analysis to the crime
laboratory.
On cross-examin ation, it was established that the white
substance given to the policemen by Comay was not shown
to be a narcotic by the crime laboratory’s analysis. Pat-
ton also testified that the contraband was removed from
the suitcase at the apartment and taken to the crime
laboratory. He stated that he believed thai the suitcase
itself had remained at the apartment. He admitted that
he had not tested for fingerprints on the suitcase and
stated that he had found no identification in the suitcase.
App. 5
Kane, the manager of the apartment building in which de-
fendant was arrested, was offered to prove that defendant
was the lessee of the apartment in which the narcotics
were seized. It was also stipulated that defendant was
shown as the customer of record for billings by Common-
wealth Edison Company and the telephone company to
the apartment in question.
Lynn Hostetler was the first witness called by the de-
fendant. She testified that when she arrived at defen-
dant’s apartment the day before his arrest, his cleaning
lady was still in the apartment. Hostetler stayed at de-
fendant’s apartment that night and left the next morn-
ing at about 7:45 a.m. She did not observe any suitcases
in the foyer, or in any other room. Defendant’s counsel
then at _npted to question the witness about the sub-
stance of phone calls which defendant had received in
January 1979. Objection to testimony about the content
of the telephone calls was made and sustained. The wit-
ness then testified that after the phone calls, police came
to the apartment. Hostetler also testified that she had
listened in on one of the phone calls and that the per-
son on the phone identified herself as Cathy Bennet. The
witness stated that Bennet was a ‘‘girl friend’’ of defen-
dant and that, ‘‘They were having difficulties.’’
The second defense witness, Arlee Benns, testified next.
She stated that she was defendant’s housekeeper at the
time of his arrest. Defendant had spent the day before
his arrest in bed with a cold. Benns also testified that she
had never observed marijuana in defendant’s apartment
but had observed cocaine. (Emphasis supplied). She
stated that she had not noticed a blue suitease in defen-
dant’s apartment at any time since she had been his
housekeeper. The foregoing testimony was adduced dur-
ing direct examination.
App. 6
The final witness for the defense was defendaut himself.
He testified that he had been dating Cathy Bennet quite
seriously until January of 1979. She had a key to his
apartment and spent many nights there. On January 9,
1979, he received several hysterical phone calls from Ben-
net and the police came to his door later that night. They
stated that they were there in relation to a drug com-
plaint, and searched his apartment. After the search,
the police left. About a week before his arrest, defen-
dant had an argument with Bennet and broke off their
relationship.
On the morning of his arrest, defendant had left his
apartment at about 8:30 a.m. to get something to eat.
As he left he did not notice any suitcases in the foyer of
his apartment. He returned to the apartment within a
half hour and went back to bed. The next thing he re-
membered was being awakened by men in plain clothes.
They asked if he had any weapons or money. Defendant
testified that the thought he was being robbed. Defendant
denied that he had any narcotics in the apartment or that
he had taken a bag of a white substance from the safe.
In rebuttal the State called George Caruso, a police of-
ficer for the city of Chicago. He confirmed officer Patton’s
testimony that after defendant was shown the search war-
rant, he voluntarily led the police officers into the living
room to open the safe.
Defendant advanced his theory of the case during closing
arguments. He contended that someone, most probably a
former girl friend peeved by defendant’s lack of atten-
tion, falsely informed the police that defendant was hold-
ing drugs and then placed the drugs (unbeknownst to
defendant) in defendant's apartment either shortly before
the police arrived or during the search. Following a
App. 7
denial of defendant’s post-trial motion, the trial covrt
found defendant guilty of possession of more than 30
grams of cocaine (a Class I felony), not guilty of pos-
session with intent to deliver cocaine, guilty of possession
of more than 30 grams of lysergic acid diethylamide (a
Class III felony), guilty of possession of more than 500
grams of marijuana (a Class III felony), and guilty of
possession of less than 200 grams of methaqualone (a
Class III felony). Before pronouncing sentence, the trial
court noted that the statutes governing sentencing (see
Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3; Ill. Rev. Stat.
1979, ch. 56%, par. 1402) did not allow probation or work
release as sentencing alternatives. The court then sen-
tenced defendant to the penitentiary for a period of 10
years. The colloquy between defendant and the trial
court, both before and after sentencing, establishes that
all parties were aware that the mandatory penitentiary
sentence was imposed for the Class I felony—possession
of more than 30 grams of cocaine.
Defendant first contends that the evidence was insufficient
to prove beyond a reasonable doubt knowing constructive
possession. Although defendant did not have personal
possession of the narcotics, proof of constructive posses-
sion can sustain a conviction if evidence of defendant’s
acts, declaration or conduct is such that an inference of
knowing possession may be drawn. (See People v. Mack
(1957), 12 Ill. 2d 151, 159-60, 145 N.E.2d 609.) The in-
ference is a question for resolution by the court sitting
as trier of fact. (Mack, at 160.) In Mack, constructive
possession is defined as the ‘‘keeping of narcotics in a
place under the immediate and exclusive control of the
aceused.’’ (Mack, at 162). Keeping in mind that both
knowledge and constructive possession are fact questions
properly entrusted to the trier of fact, there is sufficient
App. 8
credible evidence in the case at bar to prove defendant’s
guilt. By all accounts, defendant was alone in the apart-
ment for a period of time prior to the arrest. The evi-
dence establishes that the apartment, and, inferentially, its
contents, were under defendant’s control. (See People v.
Nettles (1961), 23 Ill. 2d 306, 308-09, 178 N.E.2d 361,
cert. denied (1962), 369 U.S. 853.) The apartment door
in the instant case was locked. The police testified that
they observed suitcases in the foyer on their way into the
apartment. The police also testified that defendant ac-
knowledged that he had narcotics in the apartment by
leading the investigators to a disguised safe and withdraw-
ing two bags of ‘‘narcotic-like’’ substance from the safe.
The trier of fact could properly infer that defendant’s
act was an attempt to forestall any further search for
the actual narcotics. Although defendant testified that
other parties had been given keys to his apartment, he
admitted that he lived alone and with no regular com-
panion. Furthermore, documentary proof was introduced
to establish defendant’s payment of electric and telephone
bills, as well as his status a ssole lessee of the apartment.
This evidence, viewed in its entirety, was sufficient, if ac-
cepted by the trier of fact as truthful, to sustain defen-
dant’s conviction. See Mack, at 163.
Defendant has cited many cases, none of which contra-
dict the conclusion reached above. In People v. Binns
(1975), 27 Ill. App.3d 978, 327 N.E.2d 369, the police
found the rear door of the defendant’s apartment open.
The defendant, unlike in the instant case, was not alone
in the apartment. (See also People v. Connie (1964), 52
Ill. App.2d 221, 228, 201 N.E.2d 641; People v. Wolski
(1975), 27 Ill, App.3d 526, 327 N.E.2d 308; People v.
Faulkner (1967), 83 Ill. App.2d 54, 226 N.E.2d 467.)
Most importantly, a witness testified at the Binns trial
App. 9
that he, and not the defendant, had placed the envelopes
containing marijuana in defendant’s apartment. (See
also People v. Ireland (1976), 38 Ill. App.3d 616, 348 N.E.
2d 277.) In People v. Ridley (1978), 59 Ill. App.3d 164, 376
N.E.2d 43, in contrast to the instant case, there was testi-
mony that the room in which the contraband was discovered
was not the defendant’s room.
Defendant also contends that the State’s failure to pro-
duce the blue suitcase at trial somehow parallels cases in
which a conviction was reversed for the State’s failure
to produce the actual illegal contraband at trial. (See
People v. Taylor (1977), 54 Ill. App.3d 454, 369 L.B.2d
573.) Defendant in the instant case, however, was not
charged with possession of a blue suitcase; rather, he was
charged with possession of narcotics which, by all ac-
counts, were produced at trial. Moreover, defendant has
failed to present any cogent argument as to why the
failure to produce the blue suitcase at trial should render
the police testimony suspect. Rather, Officer Patton’s
confusion about what had actually become of the suitcase
was a matter for the trier of fact, whose duty it was to
assess the evidence and resolve any inconsistencies. See
People v. Yarbrough (1977), 67 Ill. 2d 222, 227, 367 N.E.2d
666.
Defendant’s second contention, that the chain of pos-
session of the narcotics was not established, is equally
without merit. As set out in detail above, Officer Patton
testified in detail as to his control of the narcotics after
their discovery, to his inventorying of the substances,
and to his relinquishing control to the crime laboratory.
The stipulated testimony of Provost established her con-
trol during testing, and her marking of the substances.
Furthermore, defense counsel did not object to the foun-
dation for admission of the narcotics at trial or raise the
App. 10
issue in his post-trial motion and thus waived this point.
See People v. Lain (1980), 80 Ill. App.3d 1136, 1137, 400
N.E.2d 1033; People v. Coleman (1980), 91 Ill. App.3d 646,
dahon es ae
The evidence did not suggest the possibility of substi-
tution, tampering or alteration, but rather established an
unbroken chain of castody. (See People v. Valentin
(1978), 66 Ill. App.3d 488, 492, 384 N.E.2d 67.) In con-
trast to the cases cited by defendant (sce People v. Scott
(1973), 22 Ill. App.3d 770, 317 N.E.2d 736; People v.
Resketo (1972), 3 Ill. App.3d 633, 279 N.E.2d 432; People
v. Woessner (1971), 132 Ill. App.2d 58, 268 N.E.2d 508),
there is no question in the case at bar that the substances
tested were actually rugs.
Defendant’s third issue is that the trial court erred in
denying admission of hearsay testimony. We note that
defense counsel did not make an offer of proof at the time
of objections or otherwise indicate why the proposed hear-
say testimony was relevant or admissible or what its con-
tent would be. It would be mere speculation on this court’s
part to hold the ‘‘evidence’’ admissible or even probative
of the issue presented without specific knowledge of what
the ‘‘evidence’’ would be. Thus, People v. Ireland (1976),
38 Ill. App.3d 616, 348 N.E.2d 277, in which the substance
of the proposed testimony was presented to the trial
court and then suppressed, is not apposite to the case
at bar.
Defendant’s fourth contention is that the sentence im-
posed was illegal and excessive. He asserts that it was
illegal because the court did not indicate for what charges
the sentence was being imposed. The transcript clearly
indicates, contrary to defendant’s assertions, that the
App. 11
trial court was sentencing defendant on the Class I felony
charge, possession of cocaine. As defendant has raised
the issue of the propriety of sentencing, this court may
remand the case for sentencing on the three offenses, all
Class III felonies, of which defendant was convicted but
not sentenced. See People v. Blakeney (197%), 59 Il.
App.4d 119, 124-25, 375 N.E.2d 1209, cert. denied (1979),
440 US. 915.
Defendant aiso maintains that the sentence was ex-
cessive. The range of sentencing for a Class I felony is
4 to 15 years. (Ill Rev. Stat. 1979, ch. 1005-8-1(a)(4);
ace also MN. Rev. Stat. 1979, ch. 56'%, par. 1402(a)(2).)
A sentence of 10 years i« well within the statutory pro-
vision and i« not an abuse of the trial court’s discretion.
See People v. Perruquet (1977), 68 I. 2d 149, 368 N.E.2d
882.
For the foregoing reasons, the convictions are affirmed,
and the case is remanded to the trial court for sentencing
on Counts LI, 1V, and V (possession of LSD, methaqua-
lone, and over OO grams of marijuana).
Dated at Chicago, Illinvi«, this 17th day of March, 1941.
App. 12
APPENDIX B
ILLINOIS SUPREME COURT
CLELL L. WOODS, CLERK
Supreme Court Building
Springfield, IL, 62706
(217) 782-2035
October 19, 1981
Mr. Julius L. Echeles
Attorney at Law
35 E. Wacker Dr., 8S#3500
Chicago, LL 60601
No. 54960 — People State of Illinois, respondent, vs.
Daniel Comay, petitioner. Leave to appeal,
Appellate Court, First District.
The Supreme Court today denied the petition for leave
to appeal in the above entitled cause.
Very truly yours,
/s/ Clell L. Woods
Clerk of the Supreme Court
~ uonisoddg
Office Supreme Court, US. |
FILED =
JAN 18 1962
No. 81-1130 ALBXANDER L. Siltevas.
;
In the Supreme Court of the Anited States
OCTOBER TERM, 1981
Dantet Comay,
Petitioner,
vs.
Tue STATE OF ILLINOIs,
Respondent.
On Petition For A Writ Of Certiorari To The
Appellate Court of Illinois, First District
BRIEF FOR RESPONDENT IN OPPOSITION
Tyrone C. FAHNER,
RicHarpD M. Datey, Attorney General
State’s Attorney State of Illinois
County of Cook, Mexsourne A. Nott, Jr.,
Room 500, Assistant Attorney General,
Richard J. Daley Center, 188 West Randolph Street,
Chicago, Illinois 60602 Suite 2200,
Micuagt E. SHABAT, Chicago, Illinois 60601,
Joan S. CHERRY, Attorneys for Respondent.
Davip A. SHAPIRO,
Assistant State’s Attorneys,
Of Counsel.
Printed by the Authority of the State of Illincis — 1-15-82
QUESTIONS PRESENTED FOR REVIEW
Whether the petitioner was tried consistent with his right to
due process of law where no question exists as to the applic-
ability of Jackson v. Virginia, 443 U.S. 307, and In Re Win-
ship, 397 U.S. 358, to bench trials and where the chain of
custody of the contraband seized in the instant case was estab-
lished both under the facts and the applicable law.
Whether the petitioner was tried consistent with his right to
due process of law where the petitioner's possession of con-
trolled substances was based on his exclusive right to use the
premises where the contraband was found and where the
evidence showed that no one besides the petitioner was on the
premises when he was arrested and the narcotics seized.
Whether the petitioner had the right to present evidence of
overheard telephone conversations where the trial court prop-
erly excluded the testimony in question on hearsay grounds,
petitioner's trial counsel failed to make an offer of proof, and
where the resolution of this issue merely involves questions of
evidence applied under familiar legal rules.
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ...........
TABLE OF CONTENTS..............0000000000000:
TABLE OF AUTHORITIES ...................0000.
ID oo. cubceacnwedeaeesvesernases
iia nl
STATEMENT OF THECASE ....................-.
REASONS FOR DENYING THE PETITION FOR
WRIT OF CERTIORARI ...............ceceeeees
I.
The Petitioner Has Failed To Show Any Need
For This Court To Grant His Petition For A
Writ Of Certiorari Where The Due Process Re-
quirements Of Jackson V. Virginia, 443 U.S.
307, Clearly Apply To All State Criminal Pro-
ceedings, Not Merely Jury Trials, And The
Evidence Adduced At Trial Clearly Shows That
The Requirements Were Satisfied In This Case,
And Where The Rule Of Law Pertaining To
Chain Of Custody Is The Same Both In Illinois
And In The Federal Courts .................
II.
The Petitioner Has Failed To Show Any Need
For This Court To Grant His Petition For A
Writ Of Certiorari Where The Presumption
Raised By The Possession Of Contraband,
Whether Actual Or Constructive, Clearly Con-
forms To Due Process Requirements, And
Where The Evidence Adduced At Trial Clearly
Supported The Trial Ccurt’s Finding Of Posses-
sion Of Contraband By Petitioner ............
PAGE
12
Ill.
The Petitioner Has Failed To Show Any Need
For This Court To Grant His Petition For A
Writ of Certiorari Where The Trial Court Pro-
perly Excluded The Testimony In Question On
Heaisay Grounds, Where Petitioner Failed To
Preserve This Issue By Making An Offer Of
Proof, And Where A Review By This Court
Would Only Involve Questions Of Evidence Ap-
plied Under Familiar Legal Rules. ...........
GSU c vac ccccccccnceecesecccecseueseouns
iv
TABLE OF AUTHORITIES
CASES
Brewer v. United States, 353 F.2d 260 (8th Cir.
DN Mars Capel dwhd4.46466400060006
EES a8dWEs HAP 4AdH RDO Ee ROLS Cenee
Fry Roofing v. Wood, 344 U.S. 157(1952)......
Hopt v. People of the Territory of Uizh, 110 U.S.
C4 Gi6n 660665850000 06606000008
In re Winship, 397 U.S. 358(1970) ...........
Jackson v. Virginia, 443 U.S. 307(1979) .......
Napue v. United States, 432 F.2d 1230 (7th Cir.
is i ba dekdiniansséexutaanedabes
ae
DEE SonSCUcdGbeenSKKee enone secdesees
People v. Grayson, 89 Ill. App. 3d 766, 411
N.E.2d 1177 (1st Dist. 1980)...............
People v. Mireles, 79 Ill. App. 3d 173, 398
N.E.2d 150 (Ist Dist. 1979)................
People v. Nettles, 23 Ill. 2d 306, 178 N.E.2d 361
(1961), cert. denied, 369 U.S. 853 (1962)... ..
People v. Valentin, 66 Ill. App. 3d 488, 384
N.E.2d 67 (Ist Dist. 1978)..............05.
Roviaro v. United States, 353 U.S. 53 (1957) ....
United States v. Aviles, 623 F.2d 1192 (7th Cir.
NS 64400664 60004640060 000 bnene shaun
United States v. Brown, 482 F.2d 1226 (8th Cir.
NGS UuWegS obs dae as acaeekeae cates
PAGE
11
13
12-13
16
10-11
9-11
13
16
13
11
16
13
11
13
11
11
United States v. Johnston, 268 U.S. 220 (1925) ..
United States v. Maspero, 496 F.2d 1354 (5th Cir.
Oe a ene
United States v. Panza, 612 F.2d 432 (9th Cir.
1979), cert. denied, 447 U.S. 925(1980) .....
United States v. Ramirez-Valdez, 468 F.2d 235
a ile
United States v. Staten, 581 F.2d 878 (D.C. Cir.
i ee
STATUTES AND RULES
Il. Rev. Stat. 1979, ch. L1OA, sec. 23 .........
Federal Rule of Evidence 103(a)(2) ...........
Federal Rule of Evidence 801(c)..............
TREATISES
McCormick On Evidence, secs. 51, 245, 246 (2nd
Ces chdeedded ines ddeeens
l
No. 80-1130
In the Supreme Court of the Anited States
OCTOBER TERM, 1981
Daniet CoMay,
Petitioner
vs.
THE PEOPLE OF THE STATE OF ILLINOIS,
Respondent.
On Petition For A Writ Of Certiorari To The
Appellate Court of Illinois, First District
BRIEF FOR RESPONDENT IN OPPOSITION
OPINION BELOW
The unpublished order of the Appellate Court of Illinois,
First District, affirming the petitioner's convictions of posses-
sion of more than 30 grams of cocaine, possession of more
than 30 grams of lysergic acid diethylamide, possession of
more than 500 grams of marijuana, and possession of less
than 200 grams of methaqualone, is set out in full in the peti-
tion for writ of certiorari, Appendix “A”.
JURISDICTION
The jurisdictional requisites have been set forth in the Peti-
tion for a Writ of Certiorari. However, as treated more fully
within this brief, the respondent submits that the petitioner
has not shown any good reason for this Court to exercise its
sound judicial discretion to grant his petition.
STATEMENT OF THE CASE
After a bench trial in the Circuit Court of Cook County,
Illinois, the petitioner, Daniel Comay, was convicted of four
counts of possession of an unlawful substance. (R. 270)' He
was sentenced to 10 years imprisonment in the Illinois Depart-
ment of Corrections. (R. 314-315) The defendant appealed
the judgments of conviction and the sentence to the Appellate
Court of Illinois, First District. The Appellate Court affirmed
the defendant's convictions and remanded for sentencing as
to Counts 3, 4 and 5. (App. “A” at 11) The remand for
sentencing, however, is not involved in the petition before this
Court. The Supreme Court of Illinois also denied defendant's
petition for leave to appeal. (App. “B” at 12)
THE PETITIONER’S TRIAL
Chicago police officer Paris Patton testified that on
February 9, 1979, he was assigned to the Chicago Police De-
partment’s Vice Control Division, narcotics section. (R. 54)
Pursuant to a search warrant, Patton, accompanied by other
police officers, went to petitioner's residence at 11:30 a.m.
that morning. (R. 55) Patton knocked at the door and, when
there was no answer, waited approximately 1% hours until a
' R. designates the transcript of the record of the Petitioner's trial.
maintenance man appeared who let him in the apartment.
(R. 57) The door opened into a foyer which led into the living
room. From the living room a hallway extended to the back
bedroom. (R. 57)
The officers found the petitioner asleep in the back
bedroom. (R. 57) Officer Patton woke the petitioner by call-
ing his name and showed him the search warrant. (R. 58) He
then advised the petitioner of his constitutional rights. When
Patton asked petitioner if there were any narcotics in the
apartment, petitioner replied, “Follow me, ” and led Patton
to an end table in the living room. (R. 60) The end table was
in fact a safe, which held a “clear, white plastic bag con-
taining a white powdered substance.” (R. 60) Patton then
asked petitioner if there were any more narcotics in the apart-
ment and petitioner responded, “No.” (R. 60)
Officer Patton, however, continued to search, and in the
course of the search found a blue suitcase in the foyer of
petitioner’s apartment, which had within it a clear plastic bag
containing “a white powdered substance,” a clear plastic bag
containing “green and white tablets,” a clear plastic bag
containing “some purple dots,” a clear plastic bag containing
“a quantity of white tablets,” and three clear plastic bags
containing “crushed green marijuana plant.” (R. 61)
After arresting the petitioner, Officer Patton went directly
to police headquarters where he filled out a narcotics evidence
envelope, listing the contraband he had confiscated. (R. 63)
The officer then personally went to the Crime Laboratory
where he inventoried the confiscated items and submitted
them for analysis. (R. 63) Officer Patton also testified to
hand-carrying the inventoried package to court after signing
it out of the Evidence and Recovered Property Section at
police headquarters. (R. 64)
Officer Patton identified People’s Exhibit No. 1 as the type
of large plastic bag which the Crime Laboratory used to cover
seized property once the technicians have completed their
analysis. (R. 65) The large plastic bag had a cord tied around
it which was removed by Patton in court. (R. 65-66) Inside the
plastic bag was a brown paper bag with a manila narcotics
envelope attached. Patton identified it as the Chicago Police
Department evidence envelope to which he had affixed his
signature on February 9, 1979. (R. 67-68) Patton also iden-
tified the sealed brown paper bag bearing his initials as the
one into which he had inserted the items confiscated from
defendant's apartment. (R. 68-69)
Officer Patton then identified the contents of People’s Ex-
hibits Nos. 4 through 9 as being similar to the substances he
found in the petitioner's apartment on February 9, 1979. (R.
69-80) Patton also stated that he had inventoried each of the
seized items and placed them in plastic bags similar to those in
which each item was now contained and had submitted the
items to the Crime Laboratory for expert analysis.
Following Officer Patton’s testimony, evidence was re-
ceived by way of stipulation between the People and the peti-
tioner. It was stipulated that if Christine Provost were called
she would testify that she is a Chicago Police Department
Chemist. (R. 145) On March 23, 1979, she received a sealed
package under inventory number 617705. On April 3, 1979,
she opened the package and removed several plastic bags.
One of the bags contained white powder, another contained
green capsules. (R. 145) Provost analyzed the contents of both
bags and concluded they were negative for selected controlled
substances. (R. 145) Provost then examined another one of
the plastic bags from the sealed package. She analyzed the
contents of the bag and determined that the white powder,
contained cocaine. (R. 146) Provost would testify this bag
which’she marked as Exhibit No. Q-2 in her testing was Peo-
ple’s Exhibit No. 4. (R. 146) Provost then examined a plastic
bag containing white tablets marked “Rorer 4.” She
labeled those tablets with an open “4” as No. Q-3 for testing
and determined they contained methaqualone. (R. 147) She
labeled those pills with a closed “4” as No. Q-4. These tablets
contained Drazepan. (R. 147) She placed Q-3 in a plastic bag
and this plastic bag was People’s Exhibit No. 5-b. (R. 147)
Those tablets labeled Q-4 were also put in a plastic bag and
embody People’s Exhibit No. 5a. (R. 147) Provost set these
bags aside and examined three bags containing plant mate-
rial. (R. 148) These bags contained marijuana. (R. 148) They
are embodied by People’s Exhibits Nos. 7a, b, and c. (R. 148)
On April 3, 1979, all these materials were locked away until
April 19, 1979. She then removed the package and took out
one plastic bag containing purple tablets. Provost had
marked this bag as Q-6 on April 3, 1979. There were 27 pur-
ple tablets inside. The tablets were analyzed and were found
to contain 0.20 grams of lysergic acid diethylamide, or LSD.
(R. 149) Provost would testify these LSD tablets are embodied
in People’s Exhibit No. 6. (R. 149) All of the plastic bags were
then returned to the package under inventory number
617705. (R. 149)
Following this stipulation another stipulation, from the
manager of the apartment building in which petitioner was
arrested, was offered to prove that petitioner was the lessee of
the apartment in which the narcotics were seized. (R. 151) It
was further stipulated that petitioner was shown as the
customer of record for billings by the electric and telephone
companies to the apartment in question. (R. 152-154)
Lynn Hostetler was the first witness called by the petitioner.
She testified that when she arrived at petitioner's apartment
the day before his arrest, his cleaning lady was still in the
apartment. Hostetler stayed at petitioner's apartment that
night and left the next morning at about 7:45 a.m. She did
not observe any suitcases in the foyer, or in any other room.
Petitioner's counsel then attempted to question the witness
about the substance of telephone calls which petitioner had
received in January of 1979. Objection to testimony about the
content of the telephone calls was made and sustained. The
witness then testified that after the telephone calls, police
came to the apartment. Hostetler also testified that she had
listened in on one of the telephone calls and that the person on
the telephone identified herself as Cathy Bennet. The witness
stated that Bennet was a “girl friend” of petitioner's and that,
“They were having difficulties.” (R. 172-182)
The second defense witness, Arlee Benns, testified next.
She stated that she was petitioner's housekeeper at the time of
his arrest. (R. 192) Petitioner had spent the day before bis ar-
rest in bed with a cold. (R. 196) Benns also testified that she
had never observed marijuana in petitioner's apartment but
had observed cocaine. (R. 200) She stated that she had not
noticed a blue suitcase in petitioner's apartment at any time
since she had been his housekeeper. (R. 201)
The final witness for the defense was petitioner himself. He
testified that he had been dating Cathy Bennet quite seriously
until January of 1979. (R. 214-216) She had a key to his apart-
ment and spent many nights there. (R. 216) On January 9,
1979, he received several hysterical telephone calls from Ben-
net and the police came to his door later that night. They
stated that they were there in relation to a drug complaint,
and searched his apartment. (R. 216-217) After the search,
the police left. About a week before his arrest, petitioner had
an argument with Bennet and broke off their relationship.
(R. 218) Petitioner tried to get his key back from Bennet, but
she refused to return it. (R. 219)
On the morning of his arrest, petitioner left his apartment
at about 8:50 a.m. to get something to eat. As he left he did
not notice any suitcases in the foyer of his apartment. He
returned to the apartment within a half hour and went back
to bed. The next thing he remembered was being awakened
by men in plain clothes. They asked if he had any weapons or
money. Petitioner testified that he thought he was being
robbed. Petitioner denied that he had any narcotics in the
apartinent or that he had taken a bag containing a white sub-
stance from the safe. (R. 221-227)
In rebuttal the People called George Caruso, a police of-
ficer for the City of Chicago. He confirmed Officer Patton's
testimony that after petitioner was shown the search warrant,
he voluntarily led the police officers into the living room to
open the safe. (R. 242-244)
The trial court found petitioner guilty on four counts of
possession of controlled substances and sentenced him to 10
years imprisonment. (R. 27C, 314-15) Petitioner appealed his
convictions and sentence to the Appellate Court of Illinois.
THE PETITIONER’S APPEAL
In an unpublished order of the Court, pursuant to Illinois
Supreme Court Rule 23, Ill. Rev. Stat. 1979, Ch. 110A, Sec.
23, the Appellate Court of Illinois, First District, affirmed the
petitioner’s convictions and remanded the cause to the trial
court for sentencing purposes only. (The Order is set out in
full in the petition for writ of certiorari, Appendix “A”.) The
Appellate Court ruled, inter alia, that the trial evidence was
sufficient beyond a reasonable doubt to prove that petitioner
had constructive possession of the narcotics in question. (Ap-
pendix “A” at 7-9) In so finding, the Appellate Court noted
that knowledge and constructive possession are fact questions
for the trier of fact and that the evidence established that the
apartment, and, inferentially, its contents, were under the
petitioner's control. (Appendix “A” at 7-8)
The Appellate Court also ruled that the evidence estab-
lished an unbroken chain of custody of the narcotics and did
not suggest the possiblity or substitution, tampering, or
alteration. (Appendix “A” at 9-10) The Appellate Court also
noted that petitioner waived this issue for purposes of appeal
by failing to object to the foundation for admission of the nar-
cotics at trial or raise the issue in his post-trial motion.
Finally, the Appellate Court addressed the petitioner's con-
tention on appeal that reversible error occurred when the trial
court denied admission of hearsay testimony. The Appellate
Court noted that defense counsel failed to make an offer of
proof to show what the statements would reveal or to “other-
wise indicate why the proposed hearsay testimony was rele-
vant or admissible or what its content would be.” Thus, the
Appellate Court concluded that it would be “mere specula-
tion” on its part to hold the hearsay testimony admissible or
even probative of any issue before the court. (Appendix “A”
at 10)
Following the affirmance of his convictions by the Ap-
pellate Court, the petitioner sought leave to appeal to the .
Supreme Court of Illinois. On October 19, 1981, the Supreme
Court of Illinois denied his petition for leave to appeal. (Ap-
pendix “B”)
REASONS FOR DENYING THE
PETITION FOR WRIT OF CERTIORARI
1.
THE PETITIONER HAS FAILED TO SHOW
ANY NEED FOR THIS COURT TO GRANT HIS
PETITION FOR A WRIT OF CERTIORARI
WHERE THE DUE PROCESS REQUIREMENTS
OF JACKSON V. VIRGINIA, 443 U.S. 307,
CLEARLY APPLY TO ALL STATE CRIMINAL
PROCEEDINGS, NOT MERELY JURY TRIALS,
AND THE EVIDENCE ADDUCED AT TRIAL
CLEARLY SHOWS THAT THE REQUIRE-
MENTS WERE SATISFIED IN THIS CASE, AND
WHERE THE RULE OF LAW PERTAINING TO
CHAIN OF CUSTODY IS THE SAME BOTH IN
ILLINOIS AND IN THE FEDERAL COURTS.
The petitioner contends that a Writ of Certiorari should be
granted by this Court on the basis that his due process rights
were infringed because no reasonable finder of fact could
have found that the narcotics seized in petitioner's apartment
were in fact the same substances tested by the police chemist
and admitted into evidence against petitioner at trial. The
respondent maintains that the petition for certiorari is im-
properly brought upon this basis because no substantial
federal question has been raised by petitioner and because the
issue here is clearly not sufficiently important to warrant this
Court’s attention. Moreover, the respondent maintains that
the decision below gave full consideration to the issues and
decided them correctly.
Petitioner claims that certiorari should be granted here so
that this Court may clarify the applicability of the due process
aspects of Jackson v. Virginia, 443 U.S. 307 (1979), to a state
bench trial, and to address the evidentiary requirements con-
10
cerning the chain of custody of evidence. As to petitioner's
first argument, it is clear that there is no need to give plenary
consideration to the applicability of Jackson v. Virginia,
supra, to the instant case. In Jackson this Court applied the
due process standard of proof beyond a reasonable doubt in
criminal prosecutions to a federal habeas corpus proceeding
involving a conviction in a state court. In applying this stan-
dard this Court stated that:
*** the relevant question is 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. [Em-
phasis supplied]
Therefore, defendant's contention that this Court should
grant certiorari in order to apply the Jackson due process stan-
dard to a state bench trial is without merit because it is im-
plicit in both Jackson and In re Winship, 397 U.S. 358 (1970),
that the aforementioned standard applies to “any rational —
trier of fact,” including the trial judge in bench trials.
That the Jackson standard was correctly applied in the case
at bar is clear from the trial record. As the Appellate Court
found, Officer Patton testified in detail concerning his con-
trol of the narcotics after their discovery, to his inventorying
of the substances, and to his relinquishing control to the crime
laboratory. (R. 63-64) Moreover, the stipulated testimony of
the police chemist who determined that the substances found
in petitioner's apartment were indeed narcotics established
her control during the process. (R. 145-149) Finally, Officer
Patton identified the brown bag into which he had inserted
the package containing the narcotics on the date of their
seizure and he further identified the evidence envelope which
displayed his signature and which he had attached to the
large paper bag. (R. 66-68) Officer Patton also identified
every individual package of narcotics which was contained in
ll
the larger evidence bag as being similar to the packages he
found in defendant's apartment on February 9, 1979. (R.
69-78) Therefore, the Appellate Court's finding that the
“evidence did not suggest the possibility of substitution,
tampering, or alteration, but rather established an unbroken
chain of custody” clearly comported with the due process re-
quirements of Jackson and Winship, supra.
Only a brief word will be said about petitioner's contention
that this Court should grant certiorari in order to address the
evidentiary requirements concerning the chain of custody of
evidence. Let it suffice to say that the law of chain of custody
both in Illinois and in the federal courts is the same. As the
Eighth Circuit Court of Appeals stated in United States v.
Brown, 482 F.2d 1226, 1228 (8th Cir. 1973):
The criteria governing admission of exhibits into evi-
dence is that there must be a showing that the physical
exhibit being offered is in substantially the same con-
dition as when the crime was committed. That deter-
mination is to be made by the trial judge, not the jury,
and may not be overturned except for a clear abuse of
discretion.
Accord: Brewer v. United States, 353 F.2d 260, 263 (8th Cir.
1965); United States v. Aviles, 623 F.2d 1192 (7th Cir. 1980);
People v. Grayson, 89 Ill. App. 3d 766, 411 N.E.2d 1177 (1st
Dist. 1980); People v. Valentin, 66 Ill. App. 3d 488, 384
N.E.2d 67 (1st Dist. 1978). Based on the evidence adduced at
trial, there can be no doubt that the Appellate Court properly
applied the chain of custody rule in the instant case.
For all the reasons noted above, the respondent urges that
this issue was properly decided by the Illinois Appellate
Court, and because the petitioner has failed to show any need
for this Court to grant his petition for certiorari, his petition
should be denied.
12
II.
THE PETITIONER HAS FAILED TO SHOW
ANY NEED FOR THIS COURT TO GRANT HIS
PETITION FOR A WRIT OF CERTIORARI
WHERE THE PRESUMPTION RAISED BY THE
POSSESSION OF CONTRABAND, WHETHER
ACTUAL OR CONSTRUCTIVE, CLEARLY CON-
FORMS TO DUE PROCESS REQUIREMENTS,
AND WHERE THE EVIDENCE ADDUCED AT
TRIAL CLEARLY SUPPORTED THE TRIAL
COURT’S FINDING OF POSSESSION OF CON-
TRABAND BY PETITIONER.
The petitioner next requests that a Writ of Certiorari be
granted so that this Court may determine the constitutionality
of the inference drawn by the trial court concerning construc-
tive possession of contraband found in petitioner's apartment.
In answer, the respondent maintains that petitioner's argu-
ment is nothing more than a disguised attempt to relitigate .
the issue of petitioner's guilt which was properly determined
by the trial court and affirmed by the Illinois Appellate
Court. Clearly, a Writ of Certiorari is improperly sought on
this basis. Moreover, a review of the pertinent case law in-
dicates that the presumption or inference applied by the trial
court here was proper in all respects.
In essence, the petitioner is asking this Court to review the
lengthy trial record to see if this Court can find what the trial
court and the Appellate Court could not — a reasonable
doubt as to the petitioner's guilt. This Court has repeatedly
held, “We do not grant a certiorari to review evidence and dis-
cuss specific facts. United States v. Johnston, 268 U.S. 220,
227 (1925). “There are no exceptional circumstances of any
kind that would justify” this Court in rejecting the findings of
the Illinois Appellate Court, for those findings are clearly sup-
ported by the overwhelming weight of the evidence. Fry Roof-
13
ing v. Wood, 344 U.S. 157, 167 (1952). Although the peti-
tiener has failed to show the need for this Court to, in its
sound discretion, grant his petition, the respondent, confi-
dent that the Illinois Appellate Court has properly deter-
mined this issue, will briefly address the merits.
It should first be pointed out that both Illinois and federal
decisional law velating to constructive possession of contra-
band are the same. Possession of narcotics can be constructive
as well as actual. The hallmark of constructive possession is
some measure of dominion or control over the contraband
and this dominion and control can be either exclusive or
shared. United States v. Maspero, 496 F.2d 1354, 1359 (5th
Cir. 1974); United States v. Staten, 581 F.2d 878 (D.C. Cir.
1978); People v. Davis, 33 Ill. 2d 134, 210 N.E.2d 530 (1965).
Furthermore, circumstantial evidence is sufficient to support
an inference of constructive possession. United States v.
Ramirez- Valdez, 468 F.2d 235 (9th Cir. 1972); Covearubias
v. United States, 272 F.2d 352 (9th Cir. 1960); People v. Net-
tles, 23 Ill. 2d 306, 178 N.E.2d 36] (1961), cert. denied, 369
U.S. 853 (1962). Finally, it has been held by this Court that a
presumption similar to the one applied in the case at bar does
not shift the burden of proof to the defendant; rather it mere-
ly places on defendant, at a certain point, the burden of going
forward with the evidence. Roviaro v. United States, 353 U.S.
53 (1957). Such a presumption is merely rebuttable, not con-
clusive. Napue v. United States, 432 F.2d 1230 (7th Cir.
1970).
In the instant case, there was clearly sufficient evidence to
prove beyond a reasonable doubt that petitioner had con-
structive possession of the narcotics in question. There is no
question that the illicit drugs were found by police in peti-
tioner’s own apartment. (R. 60-61, 151-154) No showing was
made that anyone but petitioner was in his apartment on the
morning that he was arrested and the narcotics seized. Peti-
14
tioner’s testimony that he went out earlier on the morning in
question and did not see the suitcases containing the narcotics
in his foyer (R. 222) clearly created a question for the trier of
fact to resolve. The trial court sir~ply did not believe that bet-
ween the time petitioner returned home and the time the
police arrived, someone entered his apartment, left the nar-
cotics and departed. Finally, the mere possibility that other
persons, according to petitioner's unsupported claims, might
have had access to petitioner's apartment, is irrelevant since
no evidence was introduced at trial to show that these alleged
persons were in fact in petitioner's apartment on the morning
in question.
For all the reasons noted above, the respondent urges that
because this issue was properly decided by the Illinois Ap-
pellate Court, because the decision of the Appellate Court is
in accord with the decisions of this Court and the federal
courts of appeals, and because the petitioner has failed to
show any need for this Court to grant his petition for a Writ of
Certiorari and entertain a de novo review of the facts in this —
case, his petition should be denied.
15
III.
THE PETITIONER HAS FAILED TO SHOW
ANY NEED FOR THIS COURT TO GRANT HIS
PETITION FOR A WRIT OF CERTIORARI
WHERE THE TRIAL COURT PROPERLY EX-
CLUDED THE TESTIMONY IN QUESTION ON
HEARSAY GROUNDS, WHERE PETITIONER
FAILED TO PRESERVE THIS ISSUE BY
MAKING AN OFFER OF PROOF, AND WHERE
A REVIEW BY THIS COURT WOULD ONLY IN-
VOLVE QUESTIONS OF EVIDENCE APPLIED
UNDER FAMILIAR LEGAL RULES.
The final ground upon which petitioner seeks the granting
of a Writ of Certiorari by this Court concerns the exclusion of
evidence where no offer of proof is made to show what the ex-
cluded evidence would entail. Petitioner contends that the ex-
clusion of the testimony in the case at bar violated his due pro-
cess right to present relevant defense evidence. The respon-
dent maintains, however, that this issue was correctly decided
in the decision below and that a review by this Court would in-
volve only questions of evidence applied under familiar legal
rules. Therefore, the petition should be denied.
It should first be pointed out that the excluded testimony in
question was clearly hearsay. Therefore, the prosecutor's ob-
jection was properly granted. Both the petitioner and his
girlfriend at the time of his arrest, Lynn Hostetler, attempted
to testify as to the substance of alleged conversations between
petitioner and his former girlfriend. The record shows that
the trial judge allowed Ms. Hostetler to testify that the peti-
tioner received a telephone call and that the caller was his
former girlfriend. However, the judge correctly sustained the
prosecutor's hearsay objections when the witness attempted to
testify as to the alleged statements by petitioner's former
girlfriend. (R. 179-182) During petitioner's testimony the trial
16
judge also properly sustained the prosecutor's hearsay objec-
tion to other alleged statements made to petitioner by his
former girlfriend. (R. 217-218) Moreover, as the Appellate
Court noted (Appendix “A” at 10), counsel for petitioner
failed to make an offer of proof or to otherwise indicate why
the proposed hearsay testimony was relevant or admissible or
what its coritent would be.
Based on the foregoing facts it is clear that the trial judge
properly barred the proposed testimony on hearsay grounds.
The out of court statements were clearly being introduced to
show the truth of the matters asserted therein. Since the
statements were obviously self-serving and since the declarant
was not in court, there was no way the trial judge could have
determined the credibility of those statements or even ascer-
tained if the statements were in fact made. Hence, the trial
judge properly excluded this incompetent testimony under
well settled evidentiary principles. Hopt v. People of the Ter-
ritory of Utah, 110 U.S. 574 (1884); People v. Carpenter, 28
Ill. 2d 116, 190 N.E.2d 738 (1963); Federal Rule of Evidence —
801(c); McCormick on Evidence, secs. 245 and 246 (2nd Edi-
tion 1972).
Additionally, the failure of petitioner’s trial counsel to
make an offer of proof to show what the proposed testimony
would have entailed resulted in the Appellate Court's finding
that this issue was not preserved for review. (Appendix “A” at
10) This ruling was clearly proper under both ITilinois and fed-
eral evidence law. United States v. Panza, 612 F.2d 432 (9th
Cir. 1979), cert. denied, 447 U.S. 925 (1980); People v.
Mireles, 79 Ill. App. 3d 173, 398 N.E.2d 150 (1st Dist. 1979);
Federal Rule of Evidence 103(a)(2); McCormick On Eut-
dence, sec. 51 (2nd edition 1972).
Therefore, for all the reasons stated above, the respondent
urges that because this issue was properly decided by the I]-
linois Appellate Court and because a review of this issue by
17
this Court would involve only questions of evidence applied
under familiar legal rules, the petitioner has failed to show
any need for this Court to grant his petition for certiorari and
such petition should be denied.
CONCLUSION
The People of the State of Illinois respectfully request that
the petition for a writ of certiorari be denied.
Respectfully submitted,
TYRONE C. FAHNER,
Attorney General,
State of Illinois,
MELBOURNE A. NOEL, JR..,
Assistant Attorney General,
188 West Randolph Street,
Suite 2200,
Chicago, Illinois 60601,
Attorneys for Respondent.
RICHARD M. DALEY,
State’s Attorney,
County of Cook,
Room 500, Richard J. Daley Center,
Chicago, Illinois 60602
MICHAEL E. SHABAT,
JOAN S. CHERRY,
DAVID A. SHAPIRO,
Assistant State’s Attorneys,
Of Counsel.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.