Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois. No. 02-CF-2258. Honorable Richard Schoenstedt Judge, Presiding.
The opinion of the court was delivered by: Justice Holdridge
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.
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 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 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 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 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 ...