dissenting:
The majority stops at finding that “the ‘science’ in the instant case involves the chemistry behind converting pseudoephedrine to methamphetamine.” 367 Ill. App. 3d at 136. 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 pseudo-ephedrine can be converted into methamphetamine.” 367 Ill. App. 3d at 136. 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 pseudo-ephedrine 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 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 In People v. Snyder, No. 4 — 00—0950, slip order at 5 (January 28, 2003) (unpublished order under Supreme Court Rule 23), a forensic scientist with the Illinois State Police, qualified as an expert, testified to a 92% yield.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 People v. Feldman, No. 4 — 03—0653, slip order at 7 (May 19, 2004) (unpublished order under 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 “[different 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 áccepted 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 pseudo-ephedrine 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 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.” 367 Ill. App. 3d at 136. 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 401(a)(6.6) of the Controlled Substances Act (720 ILCS 570/401(a)(6.6) (West 2002)). 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 consensus on th£ appropriate percentage, choosing instead to assert, without authority, that “yields 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 “lenient.” 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.
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 pseudo-ephedrine 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.