People v. Wilke

Opinion

No. 3-03-0732 Filed August 15, 2006.

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2006

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit ) Will County, Illinois Plaintiff-Appellee, ) ) v. ) No. 02-CF-2258 ) WILLIAM J. WILKE, ) Honorable ) Richard Schoenstedt Defendant-Appellant. ) Judge, Presiding

JUSTICE HOLDRIDGE delivered the Opinion of the court:

Defendant, William Wilke, was charged with unlawful possession of manufacturing

chemicals with intent to manufacture 30 to 150 grams of methamphetamine (720 ILCS

570/401(a)(6.6)(A) (West 2002)). He proceeded to a jury trial and was convicted of the charged

offense. In this appeal, he claims his trial counsel was ineffective for three reasons: failing to

request a Frye hearing on the method used by a State witness to calculate prospective

methamphetamine weight; failing to seek preclusion of the mathematical formula used to

calculate prospective methamphetamine weight; and failing to seek suppression of evidence. In

a fourth claim, defendant argues that the circuit court erred in refusing to appoint new counsel

for post-trial proceedings wherein defendant alleged that his present counsel was ineffective.

We affirm. BACKGROUND

Police officer Robert Andreina testified that on December 10, 2002, while patrolling in

Braidwood, he left Snooker=s Bar on Route 129 and followed a pick-up truck driven by

defendant. Shortly after the ?on/off? ramp at Route 6, Andreina activated his overhead lights and

siren and followed defendant into the Manor Motel parking lot at Route 6 and Interstate 55.

Defendant took three steps outside his truck before Andreina ordered him to the ground.

Andreina had called for assistance, and a Channahon police officer arrived shortly after

defendant was ordered to the ground.

Officer Edward Bischoff, who responded to the call for assistance, arrived at the Manor

Motel and observed defendant on the ground at gunpoint a couple steps from his truck door.

Bischoff said he handcuffed defendant and conducted a pat-down search for officer safety. The

search revealed a wad of money about one inch thick in the inside pocket of defendant=s jacket.

Prakash Silveri, the general manager of the Manor Motel, testified that defendant had

been staying there since November 19, 2002. Defendant generally made timely payments for his

room, but Silveri could not recall any luggage or boxes. He recalled seeing defendant at times

carrying Wal-Mart bags, but he did not see any specific items inside the bags. Silveri saw

defendant on the ground at gunpoint at the time of the arrest. Defendant was behind in rent at

that time, and one of the officers paid the back rent.

Ken Simonich, an officer on the Metropolitan Area Narcotics Squad (MANS) in Joliet,

testified as an expert in methamphetamine laboratories and production. His training consisted of

a 40-hour class at Southern Illinois University in November of 2001. One object of the class was

to become familiar with precursor materials in the methamphetamine production process. Part of

2 the class involved dismantling methamphetamine laboratories considering the volatility of the

chemicals involved. The instant case was Simonich=s first actual methamphetamine case,

although he had worked on two or three others by the time of trial.

Simonich testified that on December 10, 2002, he was called to assist in an inventory

search of defendant=s truck. Several items were discovered in the back of the truck, including: a

cooler (containing additional items), brillo pads, a strainer, a clear plastic jug, some gas tanks,

another gas tank with PVC piping, boxes of Miracle Grow plant food, red tablets of

pseudoephedrine, white jugs with spray tops, bottles of Heet, and a hose with a coupler.

Simonich also searched defendant=s motel room and discovered several items, including: red

pills in packaging material, red and white pills containing pseudoephedrine in 15 blister packs

(each containing 24 pills), three bottles containing 60 pills each, and a baggie containing 800

pills that looked similar to the others. One lithium battery was also found. Although these items

could be legally purchased, they are ingredients in methamphetamine production, and Simonich

believed they were intended for this purpose. No anhydrous ammonia was found during the

searches.

Out of earshot from the jury, the State announced its intention to qualify Sanford

Angelos, an agent for the United States Drug Enforcement Administration (DEA), as an expert

witness. Angelos would testify to a mathematical formula used for determining how much

methamphetamine could be produced with a given amount of precursor pseudoephedrine. The

State also wished to present a chart to this effect. Although the chart was "available" to the

defense, the State had not previously shared it because the prosecutor actually composed it

3 ninety minutes before trial during a discussion with Angelos. The chart was a visual illustration

of the conversion to which Angelos would testify.

The trial judge reviewed pertinent case law from federal courts and observed that the

matter involved an issue of first impression in Illinois. The judge cautioned that if Angelos were

qualified as an expert, the State would have to proceed step-by-step as he rendered his opinion.

Angelos then took the stand and testified to his qualifications. The judge qualified him as an

expert in clandestine methamphetamine laboratories and, over a defense objection, in

methamphetamine generally.

During his expert testimony, Angelos explained that all methamphetamine manufacturing

processes require precursor ephedrine or pseudoephedrine. He said between 80% and 90% of

the methamphetamine production in Illinois occurs through a method involving anhydrous

ammonia and lithium batteries. He opined that the items recovered from defendant=s truck and

motel room, including over 3,500 pseudoephedrine pills, had the makings of a clandestine

methamphetamine laboratory using this method. Although each item had a legitimate purpose

when taken alone, he explained that they also played a part in methamphetamine production. His

opinion about the makings of a laboratory was based on the quantity and combination of items

recovered.

Angelos then testified to a formula for calculating how much methamphetamine could be

produced from a given amount of pseudoephedrine. Although a gram-for-gram conversion is

theoretically possible, a given amount of pseudoephedrine generally yields less

methamphetamine because pseudoephedrine tends to lose part of its molecular structure during

the conversion process. From case to case, variations occur in methamphetamine yield based

4 primarily on the sophistication of the laboratory and its operator. Accordingly, although "the

reaction will make methamphetamine almost no matter what numbers you do," Angelos

said, "how much at one time I cannot tell you." Instead, his formula was designed to

ascertain the maximum and minimum yields possible for a given amount of precursor

substance. Applying the formula to the amount of pseudoephedrine recovered in the

instant case, he opined a maximum methamphetamine yield of 114.7 grams.

Based on his own laboratory simulations, Angelos= ?textbook answer? for

potential pseudoephedrine-to-methamphetamine conversion using the anhydrous

ammonia and lithium battery method was from 95% to 100%. He had never actually

achieved a 100% conversion rate. Regarding the items recovered in the instant case,

Angelos acknowledged that they did not constitute a fully functioning methamphetamine

laboratory. He could not say how much methamphetamine a person could produce with

a single lithium battery because every person used a different ?recipe.? He testified that

patina on certain items of evidence (the fittings of a gas tank and a hose) suggested

that anhydrous ammonia had passed through those items.

Mark Brunzie, a MANS agent, testified regarding his interrogation of defendant.

During the interrogation, defendant said the items recovered from the back of his truck

were for his grandson=s science project, and the money found on his person was from

the sale of a boat. About two hours into the interview, Officer Simonich advised that a

search warrant had been executed on defendant=s motel room. Defendant then

acknowledged that the items recovered in the room were his, stating that he bought

them for friends in Flora to exchange for methamphetamine. He said the friends were

going to cook the methamphetamine and it was easier for him to buy the ingredients ?up

5 north? rather than in Flora. Defendant denied being a ?cooker? but acknowledged being

an addicted user of methamphetamine.

Kenneth Raiser, a forensic chemist, testified that he performed testing on what

was originally a vial with a cork that had a residual amount of white substance on it.

The substance contained methamphetamine.

The State then rested, and defendant=s motion for a directed verdict was denied.

Following closing arguments, the jury returned a guilty verdict.

Defense counsel filed motion for a new trial. Defendant also sent the judge a

letter alleging that his counsel had rendered ineffective assistance for not filing a motion

to suppress evidence. In the letter, defendant said he had given counsel the name of a

witness who could support a motion to suppress. Included with the letter was an

affidavit from Alfred Buckner purporting to support a motion to suppress.

Defense counsel subsequently filed a motion to withdraw from the case. In

support of this motion, counsel explained to the judge that his relationship with

defendant had broken down. The judge denied the motion, explaining that the

proceedings would be considerably delayed if new counsel were appointed. The judge

also found no ineffectiveness during the trial process, advising defendant that merely

alleging ineffectiveness does not make it so. A defense motion for a new trial was

denied as well.

After considering evidence in mitigation, and the parties= arguments as to

sentencing, the judge imposed a sentence of 72 years in prison. Defendant=s motion to

reconsider the sentence was denied, and he filed this appeal. He now claims that his

trial counsel was ineffective for: (1) failing to request a Frye hearing on the method used

6 by Sanford Angelos to calculate prospective methamphetamine weight; (2) failing to

assert a discovery violation regarding Angelos= formula for calculating prospective

methamphetamine weight; and (3) failing to file a motion to suppress evidence.

Fourthly, defendant asserts error in the trial judge=s handling of his post-trial

ineffectiveness claim.

DISCUSSION

To prevail on an ineffectiveness claim, a defendant must establish two things:

first, that defense counsel=s performance was objectively deficient (i.e., he made errors

so serious that he was not functioning as ?counsel? for sixth amendment purposes); and

second, that counsel=s deficient performance caused prejudice to the defense (i.e., but

for the unprofessional errors, a reasonable probability exists that the outcome of the trial

would have been different). Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,

104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504 (1984). Regarding the

second prong of this standard, a ?reasonable probability? is a probability sufficient to

undermine confidence in the outcome of the trial. Strickland, 466 U.S. 668, 80 L. Ed. 2d

674, 104 S. Ct. 2052; People, 104 Ill. 2d 504. If no prejudice is shown, an

ineffectiveness claim may be disposed of on the second prong without analysis on the

first prong. Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Albanese, 104

Ill. 2d 504.

1. Frye Issue

7 The Frye decision (Frye v. United States, 293 F. 1013 (D.C. Cir. 1924)) provides

the test applicable in Illinois for determining the admissibility of scientific evidence.

Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63 (2002). Under this test, a

court must first determine whether the method or technique at issue constitutes ?novel?

science. If not, no further hearing is required; if so, a so-called Frye hearing is required

to determine whether the novel method or technique has gained general acceptance in

the scientific community. Donaldson, 199 Ill. 2d 63. Without such acceptance, a novel

scientific method or technique is not admissible. Donaldson, 199 Ill. 2d 63.

Defendant argues that his counsel was ineffective for failing to request a Frye

hearing on Sanford Angelos= method for calculating methamphetamine yield from a

given amount of precursor pseudoephedrine.

In People v. Dorsey, 362 Ill. App. 3d 263 (2005), a jury found the defendant guilty

of unlawfully possessing a methamphetamine-manufacturing chemical with intent to

manufacture 30 to 150 grams of a substance containing methamphetamine. The

evidence showed that police officers recovered 552 pseudoephedrine pills during their

investigation. Moreover, the defendant was apprehended during an admitted effort to

collect 5,000 pseudoephedrine pills and manufacture 100 grams of methamphetamine.

An expert witness for the State, using a 90% conversion yield formula, testified that 552

pseudoephedrine pills could produce up to 14.994 grams of methamphetamine. On

appeal, the defendant raised an ineffective assistance claim because his trial counsel

?did not request a Frye hearing [citation] on the method the State=s expert used to

calculate methamphetamine weight where no methamphetamine was manufactured.?

Dorsey, 362 Ill. App. 3d at 269. The court rejected this claim, noting that the procedures

8 for producing methamphetamine involve simple chemistry and are not scientifically

unique. Moreover, the court found no reason for a Frye hearing because the parties

?only disagreed over the appropriate yield rate.? Dorsey, 362 Ill. App. 3d at 269.

We agree with this analysis. The ?science? in the instant case involves the

chemistry behind converting pseudoephedrine to methamphetamine. If the scientific

community generally accepts that such conversion is possible, then a Frye hearing is

not warranted. Any arguments about defendant=s particular ability to apply the

chemistry do not raise a Frye issue; rather, they raise an issue of evidentiary weight.

It is undisputed in the scientific community that chemical processes exist

whereby pseudoephedrine can be converted into methamphetamine. Not even

defendant contests this fact. Given such acceptance of the underlying method, a Frye

hearing is not required in the instant case. C.f. People v. Hickey, 178 Ill. 2d 256 (1997)

(the caliber of work performed by the person operating a laboratory does not invoke

Frye; only the scientific principles underlying the work will trigger the need for a Frye

hearing). The dissent misses this point; failing, in the process, to cite any case where

Frye was applied in the manner presently urged.

Defendant is also off base, referring to several federal cases for the proposition

that ?the proper inquiry is not what a theoretical maximum yield would be, or even what

an average methamphetamine cook would produce, but what the defendant himself

could produce.? This argument is problematic on multiple fronts. First, the applicable

federal law no longer supports defendant=s position. See United States v. Martin, 438

F.3d 621 (6th Cir. 2006) (describing a new system using a general theoretical yield

rather than consideration of defendants= individual production capacity).

9 Moreover, defendant=s argument contravenes the statutory language of the

charged offense. The statute focuses on what defendant intended to produce, not on

what he actually produced, or what he could have produced. The evidence against

defendant included 3,908 pills containing a total of 124.7 grams of pseudoephedrine.

Angelos testified that this amount could yield 114.7 grams of methamphetamine. This

testimony is scientifically sound; under proper laboratory conditions, 124.7 grams of

pseudoephedrine can be converted into 114.7 grams of methamphetamine. Defendant

has not shown that he intended to fail so miserably at his conversion as to prevent him

from yielding a mere 30 grams of methamphetamine (the minimum amount for the

charged offense) from 124.7 grams of precursor pseudoephedrine. 1

Arguments about different yields stemming from different laboratory conditions

are simply misplaced in this context. Defendant is certainly entitled to raise such

matters, but the appropriate time for doing so is during cross examination of the State=s

expert (or direct examination of a defense expert), not a Frye hearing. Differences in

methamphetamine yield simply do not involve novel science; they involve personal

1 This observation distinguishes the instant case from the portion of Dorsey where the court reduced the defendant=s conviction. The reduction was based on the fact that it was scientifically impossible to yield the minimum statutory amount of methamphetamine from the amount of precursor pseudoephedrine involved. Such is clearly not the case here. Moreover, in Dorsey Justice Steigmann aptly observed: AThe crux of this offense is defendant=s intent, not his ability, to commit the crime charged.@ Dorsey, 362 Ill. App. 3d at 271 (Steigmann, J., dissenting).

10 applications of well known and commonly accepted scientific procedures. Defendant

has mistaken a credibility issue for an admissibility issue. He has also misconstrued the

applicable statutory language. In light of these observations, his counsel was not

ineffective for failing to request a Frye hearing.

2. Discovery Issue

Next, defendant claims his counsel was ineffective for failing to assert a

discovery violation regarding Angelos= conversion formula for calculating

methamphetamine yield. The goal of discovery is to eliminate surprise and unfairness

by affording an opportunity to investigate. People v. Petty, 311 Ill. App. 3d 301 (2000).

Among other things, the State must use due diligence to disclose reports and

statements of its experts. People v. Padgett, 248 Ill. App. 3d 1018 (1993). A discovery

violation does not exist unless the questioned evidence is material and favorable to the

accused (People v. Walls, 323 Ill. App. 3d 436 (2001)), and noncompliance with

discovery rules does not warrant reversal absent a showing of prejudice (People v.

King, 248 Ill. App. 3d 180 (1993)).

Defendant=s trial began on July 8, 2003. On June 26, 2003, after a breakdown in

plea negotiations, the State tendered Angelos= name through discovery. The State

identified Angelos as an ?expert in the manufacture of methamphetamine,? included a

copy of his address and resume, and advised that any other information regarding his

testimony could be inspected, obtained, tested, copied, or photographed by

arrangement. In light of this tender, defendant was not tried ?by ambush? as he alleges.

He was given advance notice that the State intended to elicit testimony regarding

methamphetamine production from Angelos. This notice necessarily informed

11 defendant about prospective conversion testimony, since the evidence only included

precursor pseudoephedrine.

Indeed the record shows that the defense was not surprised by Angelos=

testimony at trial. On the contrary, counsel was prepared to attack Angelos= across-the-

board conversion method with an argument that any conversion formula must account

for defendant=s specific production capability.

We also see no discovery violation in the State=s use of the chart illustrating

Angelos= conversion formula. Although this chart was not tendered to the defense, the

record shows that it was not even available until ninety minutes before trial. The

prosecutor simply made the chart during a pre-trial discussion with Angelos. Since the

chart merely reflected Angelos= testimony without adding anything new, and Angelos

was tendered as an expert witness beforehand, use of the chart was not error.

For the same reasons, we decline defendant=s invitation to find that the trial judge

committed reversible error in allowing Angelos to testify regarding conversion yield.

3. Suppression Issue

Next, defendant argues that his trial counsel was ineffective for failing to file a

motion to suppress evidence. He devotes the bulk of his argument to pointing out what

the State=s evidence did not show. For instance, he argues that officer Andreina ?never

testified as to the nature of the traffic stop, never said he ran a driver=s license check,

and never said he determined whether warrants were outstanding.? Such statements

constitute an invitation to assume that some constitutional violation occurred in

connection with his arrest and the ensuing events.

12 What defendant leaves out, however, is an accurate explanation of why the

State=s evidence on this matter was so general. The record shows that at the time of

the traffic stop officer Andreina knew of an outstanding warrant for defendant=s arrest on

a charge of methamphetamine production. Defendant moved in limine to exclude all

reference at trial to the outstanding warrant. His motion was granted, and that is why

the State=s evidence regarding the reason and nature of the stop was so general. We

thus will not infer a constitutional violation from the generality. A defendant cannot

request to proceed in one manner and later, on appeal, claim error in the course of

action taken. See People v. Carter, 208 Ill. 2d 309 (2003).

Moreover, since defendant was arrested on a valid warrant, the subsequent

search of his truck was justified. See, e.g., People v. Gipson, 203 Ill. 2d 298 (2003)

(inventory search). The search of his motel room was justified as well, being supported

by a separate judicially authorized warrant. Probable cause existed for that warrant

based on the methamphetamine manufacturing materials found in defendant=s truck, the

fact that he was staying at the motel, and the outstanding arrest warrant on a charge of

methamphetamine production.

Other points alleged by defendant (e.g., payment of his back rent by the police,

and his rejection of the State=s plea offer) have no bearing on the legality of the stop,

defendant=s arrest, and the searches at issue.

Accordingly, defense counsel clearly did not render ineffective assistance in

failing to file a motion to suppress the evidence in question.

13 4. Appointment of New Counsel

The judge=s denial of defense counsel=s motion to withdraw, and his response to

defendant=s post-trial claim of ineffectiveness, rested primarily on time considerations.

Such action should, however, rest on a preliminary review of the substance of the

ineffectiveness claim. See People v. Moore, 207 Ill. 2d 68 (2003). The State

acknowledges that the judge=s conduct in this regard was ?less than effective itself.?

Nevertheless, the State argues that any error committed by the judge was harmless

beyond a reasonable doubt.

Our Supreme Court has explained that such harmless error may be found in

appropriate circumstances. Cf., Moore, 207 Ill. 2d 68; People v. Nitz, 143 Ill. 2d 82

(1991). We believe the unique circumstances of the instant case present an

appropriate instance for finding harmless error.

The basis of defendant=s post-trial ineffectiveness claim was defense counsel=s

failure to file a motion to suppress evidence. Defendant has already raised the

suppression issue for our review in this appeal. Having done so, he tied the success of

the instant issue to the outcome of the suppression issue. We have already found that

no reversible error occurred in counsel=s failure to file a motion to suppress evidence.

Thus, although the trial judge should have preliminarily addressed the substance of this

issue on the record, we decline to deem this omission a basis for remanding. The

purpose a remand would be preliminary substantive evaluation of a claim that, by

defendant=s own action, has already been decided against him in this court.

CONCLUSION

For these reasons, the judgment of the Will County circuit court is affirmed.

14 Affirmed

O=BRIEN, J., concurs, and MCDADE, J., dissents.

JUSTICE McDADE, dissenting:

The majority stops at finding that "the >science= in the instant case involves the

chemistry behind converting pseudoephedrine to methamphetamine." Slip order at 10.

I disagree. The State=s expert witness did not merely opine that pseudoephedrine can

be converted into methamphetamine. It is indeed "undisputed in the scientific

community that chemical processes exist whereby pseudoephedrine can be converted

into methamphetamine." Slip order at 10. Here, the expert opined, with the imprimatur

of generally accepted scientific certainty, that 92% of a given source of

pseudoephedrine can be converted into methamphetamine. Therefore, it is more

accurate to state that the >science= in the instant case involves not just the chemistry

behind converting pseudoephedrine into methamphetamine, but specifically whether a

known percentage of pseudoephedrine is consistently lost in that chemical process.

If >science= tells us that the answer to both questions is "Yes," then the question

for this court becomes whether that percentage is known and generally accepted in the

scientific community. The State=s expert referred to the percentage in question as the

"conversion yield formula" although he offered no "formula" for arriving at the

percentage but merely stated it as a conclusion. The substance of the expert=s

15 testimony reveals that >science,= as he understands it, tells us that 8% of the

pseudoephedrine is lost in the conversion process 2.

In support of his argument that the "conversion yield formula" lacks general

consensus in the scientific community, defendant cited several cases involving potential

methamphetamine production in which the experts have testified to different

percentages. In People v. Reatherford, 345 Ill. App. 3d 327, 340, 802 N.E.2d 340, 352

(2003), the expert testified that "some jurisdictions use an 80% to 90% yield rate, but his

office arrived at a 60% yield because >it was the most lenient[,] giving the most margin

for error and the most leniency towards the suspect.=" Reatherford, 345 Ill. App. 3d at

333, 802 N.E.2d at 346-47. In People v. Snyder, No. 4-00-0950, slip order at 5

(January 28, 2003) (unpublished order pursuant to Supreme Court Rule 23), a forensic

scientist with the Illinois State Police, qualified as an expert, testified to a 92% yield.

Snyder, slip order at 6. On cross-examination, the expert testified that the 92% yield

would occur in ideal laboratory conditions but that he could not testify how much

methamphetamine could be manufactured in the field because each lab is different. In

2 Concerning the batches of pills recovered from defendant, the State=s expert testified, respectively, that 71.2 grams of pseudoephedrine would produce 65.5 grams of methamphetamine, 15.1 grams of pseudoephedrine would produce 13.9 grams of methamphetamine, and 38.4 grams of pseudoephedrine would produce 35.3 grams of methamphetamine. Despite the expert=s assertion that his calculations were based on a 100% theoretical yield, in each case, the weight of the methamphetamine that the expert opines could be produced is 92% of the pseudoephedrine seized.

16 People v. Feldman, No. 4-03-0653, slip order at 7 (May 19, 2004) (unpublished order

pursuant to Supreme Court Rule 23), the State=s expert testified to both a 92% yield and

a 60% yield. The expert then testified that clandestine methamphetamine labs

generally produce 80 to 90% yields. Feldman, slip order at 7.

Defendant argues the above cases "display no discernable standard of general

acceptance." The State admits "[d]ifferent conversion rates have been used in the

cases cited by defendant." The majority inexplicably chose not to explain this obvious

disagreement on the "conversion yield formula" in the scientific community that has, it

concludes, generally accepted it. However, looking at the evidence in this case alone,

the State=s expert, Angelos, admitted that a person may produce something less than

the mathematically maximum amount possible and that he could not say beyond a

reasonable doubt what that amount would be. In fact, the State admits that "no one can

really predict the >actual yield= of methamphetamine that will be produced at any one

time from a given amount of pseudoephedrine." Nonetheless, the State argues, and the

majority must tacitly agree, that "this lack of a general consensus on the exact

conversion rate percentage does not affect the accepted mathematical and scientific

principles underpinning the conversion formula itself, nor does this lack of a consensus

necessitate a Frye hearing."

While I agree that methamphetamine production involves the chemical reduction

of pseudoephedrine and that some of the pseudoephedrine is lost in that process, the

question for purposes of the offense charged, and the basis of the expert=s opinion at

issue, is how much pseudoephedrine is lost. I cannot agree with the majority=s logic

that because it is well accepted that chemical reduction occurs there need not exist a

17 consensus in the scientific community as to how much it occurs. The question is not

whether defendant could have manufactured any quantity of methamphetamine. But

that is the only question answered by the majority=s conclusion that the scientific

community agrees that "conversion is possible." Slip order at 10.

The amount that can be produced is critical in a case such as this where (1) no

methamphetamine has actually been produced, and (2) the crime with which defendant

has been charged is intent to produce a specific amount of methamphetamine. The

conversion formula in this situation must be known and generally accepted because the

amount intended to be produced is an element of the crime. Absent that degree of

certainty, the guilt of any particular defendant is nothing more than speculation

depending on which expert the State uses.

The issue raised on appeal is whether counsel was ineffective in failing to

request a Frye hearing on the State=s evidence as to how much methamphetamine

defendant could have produced. The State does not dispute that how much

methamphetamine could be produced is an element of the offense in section

501/401(a)(6.6). I accept the State=s position that chemical reduction itself is not "new"

or "novel" science, but that is not the issue in this case. The "scientific principle upon

which the opinion is based" in this case is the percentage of pseudoephedrine that is

converted into methamphetamine in clandestine methamphetamine laboratories

employing chemical reduction. The State goes so far as to admit, and the available

authority confirms, that the community lacks general consensus on that percentage.

Nor did the State present evidence on appeal from which this court could find a general

18 consensus on the appropriate percentage, choosing instead to assert, without authority,

that Ayields of between 95 and 100% conversion rate is >the textbook answer for all

reductions.=@ (This assertion ignores their own expert=s testimony in this case of a 92%

yield.) In one case, the expert apparently chose a conversion rate purely at random in

an effort to be more Alenient.@ Nonetheless, the majority concludes that counsel was not

ineffective for failing to request a Frye hearing. Because I believe the conclusion is

incorrect based on the applicable law and the evidence in this case, I respectfully

dissent.