People v. Reatherford

Case Date: 12/29/2003
Court: 4th District Appellate
Docket No: 4-03-0101 Rel

NO. 4-03-0101
 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,
               Plaintiff-Appellee,
               v.
DAVID REATHERFORD,
               Defendant-Appellant.
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Appeal from
Circuit Court of
Macon County
No. 01CF116

Honorable
Lisa Holder White,
Judge Presiding.

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JUSTICE TURNER delivered the opinion of the court:

In January 2001, the State charged defendant, DavidReatherford, with one count of unlawful possession of a methamphetamine-manufacturing chemical with the intent to manufacturemethamphetamine with a prior unlawful-possession-of-a-controlled-substance-with-intent-to-deliver conviction. In March 2001,defendant filed a motion to suppress evidence and to quash the stopand arrest, which the trial court denied. In October 2002, a juryfound defendant guilty. Following the denial of defendant'sposttrial motion, the court sentenced him to eight years in prison.

On appeal, defendant argues (1) the trial court erred indenying his motion to quash the stop and arrest and suppressevidence, (2) the State failed to prove him guilty beyond areasonable doubt, (3) the trial court erred in allowing certaintestimony as to the acts and practices of others involved inmethamphetamine manufacturing, and (4) the trial court erred ingiving the jury an accountability instruction. We affirm.

I. BACKGROUND

In January 2001, the State charged defendant, along withDouglas K. Dean, by information with one count of unlawfulpossession of a methamphetamine-manufacturing chemical with theintent to manufacture methamphetamine with a prior unlawful-possession-of-a-controlled-substance-with-intent-to-deliverconviction (720 ILCS 570/401(c-5) (West 2000)), alleging heknowingly and unlawfully possessed a methamphetamine-manufacturingchemical, ephedrine, with the intent to manufacture 15 grams ormore but less than 30 grams of a substance containingmethamphetamine.

In March 2001, defendant filed a motion to suppress evidenceand to quash the stop and arrest. In May 2001, the trial courtheld a hearing on the motion. Illinois State Police Sergeant PaulMoody testified he made a traffic stop of a blue 1993 Chevroletpickup at the request of task force officers on January 22, 2001,south of Decatur. Sergeant Moody exited his vehicle and asked thedriver, defendant, to see his driver's license, and defendantcomplied. Sergeant Moody told defendant that another officer hadwitnessed defendant change lanes without signaling. He gavedefendant a verbal warning and handed his license to MasterSergeant Todd Kilby.

Defendant testified he was leaving Decatur on the afternoon ofJanuary 22, 2001. He stated he never left the right-hand lane ofthe interstate nor did he change lanes. He produced his driver'slicense upon request from a state trooper. Defendant stated theofficer never gave his driver's license back nor gave him a verbalwarning. Thereafter, Trooper Moody "pulled [him] out of the truck"and searched him and the truck without his permission. On cross-examination, defendant testified he was on his way to Pana, wherehe lived, when the police stopped him. Defendant was accompaniedby Douglas Dean as they left Decatur after shopping at Wal-Mart.

The State called Master Sergeant Todd Kilby of the IllinoisState Police, who testified he was a supervisor to Task Force X inDecatur. He stated the Task Force received a call from MichaelCottrell, a security officer at a Wal-Mart in Decatur, on January22, 2001, stating two individuals that were known to him as DouglasDean and David Reatherford were in the store purchasing Sudafed andColeman fuel, ingredients used in the manufacture ofmethamphetamine. Cottrell relayed a description of theindividuals' truck, license plate number, and the direction thetruck was heading. Sergeant Kilby testified he observed a bluetruck with license plates matching the numbers given by Cottrellheading west on Interstate 72. He then observed the vehicle changelanes without signaling and "weav[e] across the centerline back andforth out of his lane." Sergeant Kilby then requested a uniformofficer in a marked squad car make a traffic stop. After thevehicle was stopped, Sergeant Kilby approached the passenger sideand observed two one-gallon cans of Coleman fuel behind the frontseat and two lithium batteries sitting on the passenger seat. Hethen asked the passenger, Douglas Dean, to step out of the truck sohe could talk to him. Upon identifying himself as a police officerand initiating questioning, Sergeant Kilby found Dean to be"nervous," "shaking," "he was stuttering and just showing that hewas nervous talking to [him]." Dean told him the individuals werecoming from Pana and were going to Pana. Sergeant Kilby questionedhow that could be, and Dean stated he had been at a Menard's storein Forsyth. Upon questioning defendant, Sergeant Kilby stateddefendant told him he was coming from Springfield. Based on hisobservations and information, including the tip from Cottrell, theitems in the truck, and the occupants' deceptive answers, SergeantKilby instructed a police officer to place defendant in custody. Upon searching the vehicle, officers found 1,104 30-milligram pillsof pseudoephedrine. The trial court found probable cause for thestop and denied defendant's motion.

In October 2002, defendant's jury trial commenced. MikeCottrell testified he is a loss-prevention officer at a Wal-Mart inDecatur. On January 22, 2001, Cottrell noticed Doug Dean and DavidReatherford enter the store. He recognized them from Pana,Illinois, which is where he is from. Cottrell observed Dean in thecamping aisle selecting two one-gallon cans of Coleman campingfuel. Cottrell observed defendant in the pharmacy aisle selecting"two or three boxes of cold pills." Cottrell indicated the DecaturWal-Mart limits customers to buying three boxes of cold medicine orallergy medication, and the Pana Wal-Mart requires customers to askfor it "behind the pharmacy." Cottrell then contacted Task ForceX. Defendant and Dean proceeded to different checkout lanes andleft the store. Cottrell then observed the two individuals getinto a blue pickup truck and head north.

William Kroncke of the Illinois State Police took upsurveillance of the blue pickup truck shortly after his officereceived Cottrell's phone call. After the truck was stopped,Officer Kroncke searched the passenger side and found 46 boxes ofpseudoephedrine pills with each box containing 24 30-milligrampills. Other officers recovered eight lithium batteries, cashregister receipts, two one-gallon cans of Coleman fuel, a bottle ofisopropyl alcohol, two empty boxes of pseudoephedrine tablets, and$245 in cash.

The trial court certified Lieutenant Kilby as an expert in themanufacturing of methamphetamine and procurement of precursors forthe manufacturing of methamphetamine. Kilby testified to the twopredominant methods of producing methamphetamine, including theNazi-dope and red-phosphorus methods. He stated the mainingredient common to all 160 methods of production ispseudoephedrine or ephedrine, commonly found in over-the-countercold or allergy medications.

At the traffic stop of defendant's truck, Kilby observed cansof Coleman fuel and several lithium batteries. A search of thevehicle revealed the fuel and batteries, along with isopropylalcohol, pseudoephedrine pills, two receipts, and $245 in cash. Kilby testified the isopropyl alcohol is commonly used as a solventto break down the pills. The lithium batteries are used inconjunction with anhydrous ammonia. The Coleman fuel is used oncethe lithium and anhydrous ammonia reaction takes place. Based onhis training and experience, Kilby was of the opinion thepseudoephedrine or the methamphetamine-producing chemical waspossessed with the intent to manufacture methamphetamine. Thefactors relied on in forming his opinion included the Coleman fuel,isopropyl alcohol, lithium, and quantity of pseudoephedrine, "farand above what your normal consumer or normal person would have intheir possession." Also, Kilby noted the two individuals madeseparate purchases and came from a location far from their home topurchase items that could be purchased at their home location. Further, the amount of cash seized from defendant coincides withthe attempt to purchase chemicals and large amounts of these items. Kilby also stated the purchasers of the chemicals to manufacturemethamphetamine are not always the ones who make it but instead maybe buying the materials for the "actual cook."

Based on his experience, Kilby stated a "[r]ule of thumb isthat [1,000 30-]milligram pills of pseudoephedrine will produce oneounce of methamphetamine." Kilby described the yield rate as howmuch methamphetamine will be produced from a certain amount ofpseudoephedrine. He stated some jurisdictions use an 80% to 90%yield rate, but his office arrived at a 60% yield because "it wasthe most lenient[,] giving the most margin for error and the mostleniency towards the suspect." As to this case, Kilby testified1,104 30-milligram pseudoephedrine tablets were seized, amountingto 33.12 actual grams of pseudoephedrine. At a 90% yield, 33.12grams would result in 29.808 grams of methamphetamine. At an 80%yield, 33.12 grams would result in 26.496 grams of methamphetamine. At a 60% yield, 33.12 grams would result in 19.872 grams ofmethamphetamine.

On cross-examination, Kilby testified the search of defendant'struck did not reveal any anhydrous ammonia, rock salt, solvents,sulfuric acid, or other ingredients used in the making ofmethamphetamine. He also did not find any recipes for themanufacture of methamphetamine and did not know whether defendanthad any capacity to make it.

Defendant did not testify and presented no evidence. Followingclosing arguments, the jury found defendant guilty of unlawfulpossession of methamphetamine-manufacturing chemical with intent tomanufacture 15 grams or more of a substance containingmethamphetamine.

In November 2002, defendant filed a motion for a new trial orin the alternative for judgment of acquittal, arguing the trialcourt erred in (1) denying his motion to suppress and quash arrest,(2) overruling his objection to the introduction of evidence as aresult of an illegal search and seizure of his vehicle, (3) denyinghis motion in limine as to the reliability of Kilby's testimony asto the amount of methamphetamine that could be manufactured fromthe pseudoephedrine seized in this case, (4) denying a Frye hearingas to the reliability of any evidence offered, (5) accepting Kilbyas an expert witness, (6) allowing Kilby to testify "as to the actsand practices of other individuals involved in the production ofmethamphetamine, and that such evidence amounted to inadmissibleprofile testimony," (7) denying his motion for directed verdict andjudgment of acquittal, and (8) tendering to the jury an instructionon accountability. The trial court denied the motion.

In January 2003, the trial court sentenced defendant to eightyears' imprisonment. This appeal followed.

II. ANALYSIS

A. Motion To Quash Stop and Arrest and Suppress Evidence

Defendant argues the trial court erred in denying his motionto quash arrest and suppress evidence. We disagree.

1. Standard of Review and Burden of Proof

In reviewing a motion to suppress on appeal, mixed questionsof law and fact are presented. People v. Gherna, 203 Ill. 2d 165,175, 784 N.E.2d 799, 805 (2003). A trial court's assessment ofwitness credibility and factual determinations will be reversedonly if manifestly erroneous. People v. Anthony, 198 Ill. 2d 194,200-01, 761 N.E.2d 1188, 1191 (2001). However, the ultimatedetermination of whether the evidence is suppressed is entitled tode novo review. See People v. Crane, 195 Ill. 2d 42, 51, 743N.E.2d 555, 562 (2001).

On a motion to suppress evidence, the defendant has the burdenof proving the search and seizure were unlawful (725 ILCS 5/114-12(West 2002)). "However, once the defendant makes a prima facieshowing of an illegal search and seizure, the burden shifts to theState to produce evidence justifying the intrusion." People v.Ortiz, 317 Ill. App. 3d 212, 220, 738 N.E.2d 1011, 1018 (2000).

2. The Traffic Stop

The fourth amendment to the United States Constitution

guarantees "[t]he right of the people to be secure in theirpersons, houses, papers, and effects, against unreasonable searchesand seizures." U.S. Const., amend. IV. Similarly, the IllinoisConstitution affords citizens with "the right to be secure in theirpersons, houses, papers[,] and other possessions againstunreasonable searches, [and] seizures." Ill. Const. 1970, art. I,