Appeal from Circuit Court of Coles County. No. 01CF191. Honorable Ashton C. Waller, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
A jury found defendant, Bradley K. Gentry, guilty of manufacturing 400 grams or more of methamphetamine solution (720 ILCS 570/401(a)(6.5)(C) (West 2000)) and possessing a methamphetamine-manufacturing chemical, pseudoephedrine (720 ILCS 570/401(a)(6.6)(A) (West 2000)). The trial court sentenced him to concurrent terms of 15 and 8 years' imprisonment.
Defendant appeals on the following grounds. First, the trial court denied his right to due process by failing to hold a fitness hearing after scheduling one. Second, the State failed to prove the methamphetamine solution he manufactured weighed 400 grams or more. Third, the court denied him due process and failed to honor Rule 412 (188 Ill. 2d R. 412) by declining to dismiss the manufacturing count as a sanction for the State's loss or destruction of evidence. Fourth, the court abused its discretion in denying his repeated motions for mistrial. Fifth, his trial counsel rendered ineffective assistance by failing to question the potential jurors more thoroughly about their ability to remain impartial after learning of his prior arrest. Sixth, he was denied his constitutional right to be present during voir dire.
We disagree with all those contentions except the second one. Because no one weighed the methamphetamine solution other than a 39. 4-gram sample, the State failed to prove defendant manufactured more than 39.4 grams. Therefore, we remand this case with directions to reduce the conviction on count I of the information to the manufacture of 39.4 grams of methamphetamine solution, as opposed to 400 grams or more, and to resentence defendant accordingly (720 ILCS 570/401(a)(6.5)(A) (West 2000)).
On March 30, 2001, the State filed a four-count information against defendant, accusing him of committing drug offenses in Coles County on March 19, 2001. Count I charged him with manufacturing "400 grams or more but less than 900 grams of a substance containing methamphetamine" (720 ILCS 570/401(a)(6.5)(C) (West 2000)). Count II charged him with possessing the same amount (720 ILCS 570/402(a)(6.5)(C) (West 2000)). Count III charged him with possessing pseudoephedrine "with intent to manufacture 30 grams or more but less than 150 grams of any substance containing methamphetamine." 720 ILCS 570/401(a)(6.6)(A) (West 2000). Count IV repeated count III except it alleged an intent to manufacture a lesser amount: "15 grams or more but less than 30 grams" (720 ILCS 570/401(c-5) (West 2000)).
B. Defendant's Discovery Request
On April 20, 2001, defense counsel personally served a motion for disclosure upon the State. The motion requested any "photographs or tangible objects" the prosecutor intended to use at trial "or which were obtained from or belonged to the accused" as well as "[a]ny material *** within the State's possession or control [that tended] to negate [defendant's] guilt *** [or] reduce his punishment." On May 7, 2001, the prosecutor told the trial court he had provided defense counsel "with copies of all the discovery."
C. Fitness To Stand Trial
On July 31, 2001, over defendant's objection, defense counsel filed a motion for an examination of defendant to assess his fitness to stand trial. In response, the prosecutor told the trial court: "Based on not only my conversations with [defendant's current and previous attorneys] but also on what I know about this defendant, I think that this is a bona fide request. I have no objection to this defendant['s] being examined." The court granted the motion and appointed a psychologist, Dr. Jerry L. Boyd, to examine defendant.
Boyd examined defendant on August 3, 2001, and in his written report, opined that defendant "had adequate ability to cooperate in his defense" and that he was "[f]it to [s]tand [t]rial."
The parties appeared in the trial court on August 27, 2001, and the prosecutor informed the court that Boyd had found defendant fit for trial. With the agreement of the parties, the court nevertheless scheduled a fitness hearing for September 4, 2001. The parties told the court they anticipated presenting no evidence at the hearing other than Boyd's report.
On September 4, 2001, the prosecutor, defense counsel, and defendant appeared, and the trial court asked the attorneys: "What can I address?" The prosecutor replied: "Judge, at this point, I think all we need is a trial date." Defense counsel did not disagree, and until this appeal, neither party ever again mentioned the need for a fitness hearing. Nor did the court make any express finding on the issue of fitness.
During jury selection, a potential juror, Lawrence Hodges, stated, within the hearing of the venire, that he used to be a Mattoon police officer. "I don't remember [defendant's] name," he said, "but I was with an officer[,] and we've arrested [defendant] before." Defense counsel moved for a mistrial because of what Hodges said. The trial court denied the motion but excused Hodges for cause.
Another potential juror, Tony Shellaburger, told the trial court that after hearing Hodges allude to the prior arrest, he "[k]ind of" had "reservations" about his ability to "be fair to both sides." The court denied defendant's renewed motion for a mistrial but also excused Shellaburger for cause.
Another potential juror, Janice McMorris, told the trial court that she and her husband worked for State Farm Insurance Company. "We may have Steve Becker's insurance," she said, "but I don't know him well enough that--that it would affect me." Becker was a State witness who testified pursuant to a plea agreement. According to Becker's testimony at trial, defendant accompanied him when he stole anhydrous ammonia from a local fertilizer company. Becker also identified defendant as the owner of a bicycle parked at 1308 Moultrie Avenue, Mattoon, the site of the methamphetamine laboratory. The bicycle had a pouch containing lithium and crushed pseudoephedrine pills--materials for making methamphetamine. Defense counsel accepted a panel that included McMorris, and she was sworn as a juror.
Although defendant was present during the actual questioning of venire members, he did not attend two in camera meetings or approach the bench for a side-bar conference, in which the attorneys and trial court discussed challenges for cause, peremptory strikes, and the motions for mistrial.
On March 19, 2001, the police noticed the garage at 1308 Moultrie Avenue reeked of anhydrous ammonia and ether. Inside the garage, they found two transparent quart jars containing a liquid solution; three "punched" cans of starting fluid; and a gallon can of camping fuel, partially full. The solution field-tested positive for anhydrous ammonia and methamphetamine. The police collected approximately 25 milliliters of solution from each jar and sent it to the crime laboratory, which ...