drugs in a drug case cannot be overstated and is best illustrated here it is unchallenged you know uncontested that different trial counsel representing defendant below entirely stipulated to the fact that both heroin and cocaine were recovered at the scene of defendant's arrest the stipulation itself makes that and that one clear and there was an express stipulation to the lab and other words the chemical that the kind of support in this case the chemist opinion and all that was underlying it as well as express language that the chain of custody maintained was maintained at all times with respect to narcotics in this case counsel's arguments also were very clear the police recovered cocaine and heroin then again he argued later they availed themselves of some drugs what counsel did was to contest it it was his client that was delivering those drugs in an open air drug market in chicago on that day what his argument was that the police officers found drugs by the garbage can both cocaine and heroin it was not his client who placed them there and that the officer recovering the drugs or who was conducting the surveillance could not back see what he was tendering in exchange for those items paper money versus what they were while for he contested that that garbage can was within a thousand feet of a school additionally he added into the fact that the police had a motive to place those drugs that they found during that narcotics surveillance upon the defendant and that he was making a nuisance of itself interrupting and obstructing they're not products surveillance coming over to interrupt what they were doing therefore they had every reason in the world to place those drugs on him and it's worth noting that trial counsel was very careful with the stipulations in this case for example when he stipulated an investigator measured from point a to point b and that it was less than a thousand feet at no point it was very clear it was cross examination his arguments in a careful fashion to that stipulation wasn't conceding that those drugs were in fact within a thousand feet just investigator would do would be cross examined had officer there was no exact address and thirteen an independent street it was an apartment building you're guesstimating you're not guessing for sure moreover when the state's attorney attempted to enter what she termed a stipulation into the case in chief with her scarred to the defendant's background counsel quickly interrupted and said no i am not allowing you to introduce any of my clients provable in your case in either the exceptions of words which woods made very clear five years ago was that chain of custody is an adventure a matter it wasn't an element of the offense and it is relevant in so far is that you need a chemist to identify the chemical composition of the drugs that was the issue before this court five years ago in wards whether or not a challenge to the chain of custody in absence of any objection of procedural forfeiture would not matter because it is a question of the sufficiency of the evidence and with this court said unequivocally is no it's not a chain of custody is only necessary in so far as it establishes chemist's ultimate opinion otherwise there testifying to the chemical composition of some drugs that might have nothing to do with the case notably with this court also found in woods was that not only was it a procedurally forth that it was an element but that it was affirmatively waived affirmatively way of by the stipulation in the clear intent of the parties to remove all questioning yes to the identity of the chemical composition from the case at ha nd that included the experts qualifications a testing procedures in any issues as to chain of custody and this court came to that conclusion by looking at the evidence and it's entirety despite the fact that there was no express language to the chain of custody being maintained at all times with respect to the we have that here in this case that additional language that was not present and once was there were proper number two questions substances and my position is that in light of the overall stipulation to the chain of custody in this case that simple component is rendered meaningless and has no place it is both and even more the opposite of forfeited it's affirmatively waived by counsel agreeing to this testimony to come into the case thereby precluding the prosecution from any ability to correct any shortcomings or discrepancy that the defendant may not challenge that particular fact which he stipulated to fifty years ago and people versus polk this court stated in so far as you need a chain of custody if a defendant is willing to stipulate to it he cannot change it and it was well settled law at that time fifty years ago that a defendant cannot complain of the evidence he stipulated to into the record so discrepancies aside the defendant affirmative in this case by look it you know people versus bush was decided on or i should say it was argued on the same day as people vs wards if they come down two weeks earlier both in two thousand and five in the matter of bush plane air was raised it was part of the briefs it was part of the arguments in this court clearly rejected it noting that in face of affirmative waiver the analysis with respect to plain error is not possible but to determine that that is a viable method of attack in light of an affirmative stipulation is to render words internally inconsistent and irreconcilable with bush is what was the entire body of law were cutting stipulations and defendants being precluded from challenging evidence that they picture acquiesced to internet and checked who are being placed into the record and it makes all the sense in the world how can you conduct cure the error or the discrepancy that we're looking at so to answer your earlier question i'm just as thomas i don't think even if the inventory number was a digit off digits tramp transposed in light of affirmative inconsistences with respect to the chain of custody in the court and that case particularly considered the fact there was that the number was off the chemist testified and the chemist said well part of the procedure is we look and we compare and these numbers did not match leading me a situation of mis hearing or mis speaking because that officer had been questioned several times did you recount them how many that issue was probed in any bank that's what this court was was looking at when they were talking a plain error situation a procedural d fault that had been clearly it to a certain extent explored or ignored or overlooked by counsel leaving open a very distinct possibility that the state would be on able to connect the drugs to what was testified to in court but more importantly furthermore that chemistry not been allowed to testify because the relevance hadn't been established have an inconsistency were the woods case doesn't have any inconsistency but we do have it's a lot more than words we have an affirmative words entered into the record that the chain of custody was maintained and proper at all times we also have a police officer talking about the inventory process which we have a woods we have been talking about how we obtained unique inventory number kept him on his person and has taken control at all times that he filled out he described the box the how big it was that there was boxes on the outside that he filled out pertinent tack including everything relevant to the investigation that a sergeant came over and double checked his work and after their friend that it was done he signed off on it a second time none of that was in woods and we and the difference in numbers is rendered meaningless by the overall stipulation it becomes an ambiguity so it is only by looking at the affidavit in the light most favorable to defendant which purse which we know the eighteenth do that you were able to jump to the conclusion that somehow the drugs multiplied which even if you take it a step further the indictment reads that it was less than one gram of heroin in this case the stipulation says after sort of recovered five packets of heroin and the stipulation is recited by the assistant state's attorney was not we still got two point one clam all the people had looking in a light well first of all it was stipulated to so that is removed from the calculus and you do your analysis and the chain of custody only moves forward to get to the relevance of the chemist testimony it doesn't officer genea testified this is wh recovered you have a matching inventory of a matching number of items of suspect cocaine which were identified as established to be cocaine so how does it become more clear where it ends you have an ambiguity you have people saying yes the chain of custody was proper correct at all times looking at that in a light most favorable to the people would certainly established a joke beyond a reasonable doubt but in light of the procedural forfeiture he got it wrong under some legal principle of this evidence can never come into being we're saying he didn't lay the proper foundation to go back and do it again and work it cannot it doesn't commend so ultimately we ask this court to do is to clarify the pla good morning may it please the court is for me though i want to begin because our positions are obviously very very diametrically opposed we're saying we're asking for a verse of the state says we can't even get to the point of challenging this now we know as a matter of law in the state acknowledges this in their reply brief that a defendant can not waive a challenge and direct appeal to the sufficiency of the evidence in correspondingly this is critical because the state is saying defendant stipulated to this evidence and he can challenge it however in two thousand and four in the ryan b case defendant stipulated to the entirety of the evidence the testimony of the complainant the testimony of the police officer who testif though it was stipulated to and this court ultimately reversed the conviction so a stipulation unto itself does not by defendant does not foreclose his ability to challenge the sufficiency of the evidence so heroin which were recovered by officer genea in this case and then testing it testing positive for point one gram of heroin and then at the end of the stipulation bryant's stipulate testimony was that to a reasonable degree of scientific certainty the chain of custody was complete and that he would be able to identify the items which i think if you read that literally i guess the items he would have identified would be in the nine items that  recovered pursuant to his stipulated testimony but what's critical about this is this was not a freestanding stipulation to the entire chain of custody this was merely a stipulation to what the chemist would have testified to and reading the language of it all we could testify to is the end of the chain of custody that he knew about and on then and he got nine items and what do we know when we have a discrepancy between the five items and the nine items where we look to the woods case and the state contends that underwood bed we have no right to challenge but it's pages four seventy one and four seventy two of wood's state that while generally when you talk about a chain of custody and of course we know that a chain of custody in a drug case is critical because drugs are so susceptible to tampering to alteration to substitution that's why we need the inventory numbers that's why we need matching descriptions generally a defendant if he doesn't object at trial  to a foundational element which in words of course is like missing links in the chain of custody generally without that objection he cannot raise for the first time on direct appeal a challenge that to anything i mean to do with the chain but this court carved out two exceptions one of course was as to the inventory number and the other was as to when there is a description of the items that don't match and this court set forth clearly why those that exception exists it's because when you have that exception the state of the state's own job is to link the evidence that is recovered by the police officer early spider their child one of the only scepter prove is linking the evidence recovered by the officer with that which is so good for the defendant when but when you don't do it right then what you have is a complete breakdown in the chain of custody and therefore the state has failed to prove an element it has to prove that defendant possessed a controlled because we went down to the lower court on a rule three twenty nine motion by the state to correct the record and it's so interesting that what judge was said was that had she read her notes more carefully when she was determined that the record in this case and the transcript was accurate is that she would have acquitted so the judge didn't notice here in this case what we're looking at is not not a defense attorney who's laying in the weeds but a defense attorney and it's true the state know that there are a lot of things that the state that the defense counsel did know is that the burden of proof lies with the state and then when they fail to satisfy that burden on appeal regardless of whatever reason that defense counsel that he didn't notice that he did notice that whatever that defendant still has a right to raise stipulation is accurate and that's something in the rule twenty three order of the appellate court the justice mcbride pointed out that in a situation like this because it was asked earlier was this a written stipulation no it was an oral stipulation but the state could have easily taken measures to make sure that the evidence got in correct quickly if there in fact there was a mistake and of course based on this record and all we can consider is this record we don't know if there are some sick know it shouldn't and our position on this is is that once you once you are not able to link the substance recovered to the substance this quickly  does represent a failure of proof by the state and once you have a failure for if the only remedy available is reversal otherwise you would contravene double jeopardy principles and we you can you cannot retry when the evidence is insufficient as your argument feel counsel if you are agrees with opposing counsel that it was a stipulation as to chain of custody rather than as in brown forensic testing are we would argue no because what we what our position is is that you can't just look at one portion of this stipulation and again to the chemist stating in his scientific opinion that the chain of custody was complete but you still can't ignore the discrepancy in the numbers that doesn't override it because the state s you know about looking at the light most favorable to say well the problem is because this type of evidence traditionally has been found insufficient as in the terry case in the gibson case cited in my brief that this is evidence that demands reversal and what about the question they are posing also with respect to you get the inventory search number with the inventory numbers to match the it's a descriptor discrepancy of the description rather than an inventory number does that save it or not i know i don't think it saves it because the problem you have when you don't have didn't say both it said these are the two situations under which the evidence can be challenge his otherwise what you're what you're left with here regardless of the inventory numbers matching is we don't know with those nine items whether or not exceptions in woods the fact that stipulated evidence you can challenge is sufficient of that sufficiency of evidence excuse me even if it stipulated to and that the proper remedy is reversal of the conviction so we asked this court to affirm the first district each age forty of the record assistant state's attorney would be a stipulation with respect to the lab in this case she then went on about what the chemist would testify to that was absolutely a mention of the lab in this case and there is no question that a stipulated bench is not tantamount to a guilty plea and see you cannot challenge specific facts that you specifically admit into evidence no more than he had defendant be allowed to testify or challenge on appeal while it was a thousand it was how many feet between quite a and point b but because the state didn't discuss whether or not the investigators measuring device was accurate and calibrated and he'd be able to challenge it there on appeal the exact argument brought today before this court was already rejected and woods with respect to a chain of custody only applying to a portion in other words with the chemist had to testify that it didn't talk about that woods itself rejected that and this court directed practitioners if you mean to preserve that year you'd better be a little more precise and guess what we have an example of it right here with a thousand feet compare the items and determine that they match that is to take something and bring it in the light most favorable to the people in and resurrect the long unpainted reasonable hypothesis of innocence standard which you cannot  if people didn't prove a prima facia case it is a matter of evidence and we should have been allowed to have the chemist to testify that's what it comes down till there is no the argument becomes come circular something cannot be both  in an element of the offense the analysis on workable to blur those lines in so far as would judge laws has to say about that she dropped the balance sheet she was just wrong the public defender down below was in a trick bag if he knew about this and this is true of the status of the law and you hear the state what if it's written and they miss wrist they to interpose to inventory numbers or they wrong now you're supposed to object to be a good practitioner but what if you do you've got an automatic reverse are waiting for you in the appellate court based upon the rule defendants would have the power quote read into what this court stated in ones and that's just not correct what type of ethical situation would it be if it was private counsel and he was the same lawyer down the road could you as an officer of the court come in and say there was nine items knowing full well that there wasn't that there was you cannot just punish people for a mistake when the defendant participates in entering that evidence into the records law court has long recognized the defendant cannot complain of errors and he invites the cures or thank you very much thank you go