NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

2020 IL App (3d) 180121-U

Order filed September 18, 2020 

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2020 

THE PEOPLE OF THE STATE OF )

ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

JOSHUA L. HAYNES, ) 

 ) 

 Defendant-Appellant. ) 

Appeal from the Circuit Court

of the 10th Judicial Circuit, 

Tazewell County, Illinois, 

Appeal No. 3-18-0121 

Circuit No. 16-CF-409 

Honorable 

Stephen Kouri and Thomas Keith, 

Judges, Presiding. 

____________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court. 

Justice Carter concurred in the judgment. 

Justice Schmidt dissented.

____________________________________________________________________________

ORDER

¶ 1 Held: (1) The court erroneously admitted Detective Fitzgerald’s opinion testimony, and 

this otherwise forfeited error is subject to reversal under the closely balanced prong

of the plain error rule. (2) We take no position on defendant’s claim that pretrial

counsel provided ineffective assistance when he surrendered defendant’s bond in 

case No. 14-CF-405 as the record is insufficient to address this claim.

¶ 2 Defendant, Joshua L. Haynes, appeals from his conviction for unlawful possession of a 

methamphetamine precursor. Defendant raise two arguments in this appeal: (1) the Tazewell 

County circuit court erroneously allowed Detective Justin Fitzgerald to testify that defendant’s two 
2 

purchases of pseudoephedrine were consistent with an intent to produce methamphetamine, and

(2) defense counsel provided ineffective assistance for surrendering defendant’s bond in a related 

case which deprived defendant of his right to a speedy trial in the instant case. We reverse and 

remand. 

¶ 3 I. BACKGROUND

¶ 4 In September 2014, the State charged defendant, in case No. 14-CF-405, with one count 

each of aggravated driving under the influence (DUI) (625 ILCS 5/11-501 (West 2014)), driving 

while license revoked (id. § 6-303(a)), and obstructing identification (720 ILCS 5/31-4.5(a) (West 

2014)).1 On September 24, 2014, defendant posted bond and was released from custody. On 

August 8, 2016, defendant pled guilty to counts II and III. Count I remained set for trial. 

¶ 5 Also, on August 8, 2016, Officer Brett Butler placed defendant under arrest for unlawful 

possession of methamphetamine precursors (720 ILCS 646/20(a)(1) (West 2016)). The next day, 

in case No. 16-CF-409, the State filed an information that charged defendant with the same offense.

The court appointed the public defender to represent defendant and set his bond at $100,000. On 

September 1, 2016, the court set the case for trial on October 17, 2016. 

¶ 6 On September 12, 2016, in case No. 14-CF-405, assistant public defender Matthew 

Hoppock told the court “I spoke to [defendant] on Friday, along with [Public Defender] Taylor, 

and [defendant] is surrendering himself on his bond in the traffic case.” 

¶ 7 On October 11, 2016, the court granted the State’s motion to continue the case over 

defendant’s objection. The State also noted that it was electing to prosecute case No. 14-CF-405 

before the present case.

1

Defendant filed a motion requesting that we take judicial notice of appellate court case No. 3-18-

0647. We grant this motion as the record in case No. 3-18-0647 contains facts relevant to the issues raised 

in the instant case. 
3 

¶ 8 On November 4, 2016, the court entered an agreed order to continue the case to February 

27, 2017. 

¶ 9 On February 23, 2017, in case No. 14-CF-405, defendant pled guilty to count I aggravated 

DUI.

¶ 10 On February 27, 2017, in the instant case, defendant reasserted his demand for a speedy 

trial. The court continued the case. 

¶ 11 On April 7, 2017, assistant public defender Joseph Bembenek appeared on behalf of 

defendant and noted that the case had been reassigned to him. Bembenek noted the case was set 

for a jury trial on April 24, 2017, and asked for a continuance. Defendant objected to counsel’s 

request. The court set the case for review on April 24, and trial on May 22, 2017. 

¶ 12 On April 24, 2017, the court granted the State’s motion to continue the case over 

defendant’s objection. The court set the case for trial on June 19, 2017. 

¶ 13 On May 12, 2017, the State moved to continue the trial to July 17, 2017. Defendant 

objected stating that he had been incarcerated since August 8, 2016, and this was the “main charge” 

that was keeping him in custody. The court denied the State’s motion. 

¶ 14 On May 22, 2017, the State moved to continue the trial to June 26, 2017. The court granted 

the motion over defendant’s objection. 

¶ 15 On June 23, 2017, the parties agreed to continue the case to July 17, 2017, for a jury trial.

Judge Stephen Kouri presided over the trial. 

¶ 16 Donald Burgett testified that on April 29, 2016, defendant asked Burgett to purchase 

pseudoephedrine for him because he was suffering from allergies. Defendant told Burgett that he 

could not purchase the pseudoephedrine for himself. Defendant paid Burgett $10 to make the 

purchase. Later that day, Burgett purchased the pseudoephedrine from a Walgreens pharmacy. 
4 

Burgett then gave the pseudoephedrine to defendant. Burgett did not know what defendant did 

with the pills. 

¶ 17 Detective Fitzgerald testified that he was a member of the Tazewell County 

Methamphetamine Task Force. Fitzgerald had worked “[s]everal hundred” cases involving 

methamphetamine since 2009. Fitzgerald also had taken numerous courses related to 

methamphetamine. The State tendered Fitzgerald as an expert in methamphetamine production. 

Defense counsel elected to conduct his voir dire during cross-examination. 

¶ 18 Fitzgerald testified that pseudoephedrine was the main ingredient used to manufacture 

methamphetamine, and it was known as a precursor. As a member of the Methamphetamine Task 

Force, Fitzgerald reviewed pseudoephedrine purchases using the national precursor log exchange

(NPLEX) records. The NPLEX indexed pseudoephedrine sales by pharmacy. It contained the 

names of every person who purchased pseudoephedrine at the listed pharmacies. Fitzgerald looked 

for suspicious pseudoephedrine purchases by examining the: brand of pseudoephedrine purchased, 

pseudoephedrine content, and buyer’s purchase history. By comparing the buyer purchases 

histories, Fitzgerald could determine if several individuals were purchasing similar products at the 

same pharmacy at the same time.

¶ 19 While investigating an unrelated April 29, 2016, pseudoephedrine purchase, Fitzgerald 

noticed that defendant had also purchased pseudoephedrine on the same date from the same 

Walgreens pharmacy. Defendant purchased more pseudoephedrine on July 6, 2016. On both 

occasions, defendant purchased medication that contained 2.88 grams of pseudoephedrine. The 

State then asked, “And in the course of that investigation, did you find [defendant’s] purchases 

consistent or inconsistent with procurement or possession for methamphetamine production?” 

Defense counsel objected to the question, and after an off-the-record discussion, the court 
5 

overruled counsel’s objection. The State rephrased its question, and Fitzgerald testified that he 

found defendant’s two purchases to be consistent with methamphetamine production. 

¶ 20 On cross-examination, Fitzgerald testified that pseudoephedrine was available for purchase 

without a prescription. However, a single buyer could purchase no more than 7500 milligrams of 

pseudoephedrine in a 30-day period. Both of defendant’s purchases were below this purchase limit. 

Fitzgerald said that defendant’s July 6, 2016, purchase was generally lawful. Fitzgerald did not 

know what defendant did with the pseudoephedrine that he purchased on April 29, or July 6, 2016. 

Fitzgerald also did not know if defendant suffered from allergy-related symptoms that 

pseudoephedrine could be lawfully used to treat. 

¶ 21 On cross-examination of Fitzgerald, defense counsel asked: “Without waiving my 

objection, Your Honor, you told us, Detective, that [defendant’s] purchases of the pseudoephedrine 

was consistent with that being used in manufacturing methamphetamine as explained in your 

course of conduct, correct?” Fitzgerald responded in the affirmative. 

¶ 22 On redirect examination, Fitzgerald testified that on April 29, 2016, both Burgett and 

defendant purchased the same generic brand of pseudoephedrine. Fitzgerald explained that 

defendant could not buy a second package of pseudoephedrine within 24 hours of his first 

purchase. The State then asked “based on your training and your experience, is there anything that 

stands out about these two purchases on April 29 by two different individuals, one of whom was 

given money from the [d]efendant to purchase this pseudoephedrine?” Defense counsel objected 

to the question, and the court sustained the objection. The State then asked, “Are you aware, based 

on your training and experience, of situations in which one individual pays another one to 

purchases boxes of pseudoephedrine?” Defense counsel objected, and the court overruled the 

objection. Fitzgerald said he was aware of such situations.
6 

¶ 23 During a break in Fitzgerald’s testimony, defense counsel argued Fitzgerald’s testimony

that defendant’s purchases were consistent with methamphetamine production was inadmissible 

opinion testimony. Counsel argued the State had not disclosed Fitzgerald as an expert or provided 

a summary of his testimony before trial. Counsel also argued that Fitzgerald’s testimony could not 

be construed as a lay opinion. Counsel asked the court to strike the testimony. 

¶ 24 The court initially stated: 

“[L]et me mention something about the expert testimony, because I want to just 

clarify for the record. I do think expert opinions, as a general rule, need to be 

disclosed ahead of time. I’m not sure that it has to be by a written report, but in any 

event, there should be disclosure.” 

The court found that the State elicited Fitzgerald’s opinion testimony to show his course of 

investigation. The court did not bar the testimony but stated it would give a limiting instruction to 

the jury. The court later instructed the jury: 

“Don’t concern yourself with the basis and the reasons for that objection, 

but I want to instruct the jury that I allowed that testimony in, what his opinion was, 

as to his review, or after his review of those purchases, the various purchases, I 

allowed that opinion evidence in not for evidence of whether or not this [d]efendant 

committed the offense that he’s charged with. 

I let it in so that there was context into what step he took next in his 

investigation, and you are only to consider that testimony, that opinion testimony, 

in response to that question. You’re only to consider that in the context of what that 

officer did next in his investigation, why he went to the next step.
7 

It’s not any evidence. It’s not to be considered by you as evidence that this 

[d]efendant committed the offense that he’s being charged with, so I hope that 

makes some sense to you.”

¶ 25 Fitzgerald also provided the foundation for the recording of a telephone call that defendant 

placed to his mother from the Tazewell County jail. During the recording, defendant suggested 

that his mother could sell his Link card. Defendant also suggested that his mother needed “to 

hustle” like he did to make money. Defendant’s mother also said that an individual named 

“Michael” asked her if defendant “had anything for sale.” Defendant’s mother also indicated that 

she had searched the garage for an unspecified item. She noted that no one was willing to help her

with this search, and that “Michael” had told her to look for powder and pills. Defendant later 

explained that he thought someone had planted methamphetamine manufacturing material in the 

garage. Defendant told his mother to speak with “Michael” again to help her find the item in the 

garage. Defendant said that he could be in bigger trouble if his mother did not find the item, and a 

man named Derek Block was trying to set him up. Toward the end of the call, defendant said that 

he “really don’t know what it is.” Defendant then told his mother that he wanted her to sell a stereo 

and refrigerator.

¶ 26 During Fitzgerald’s testimony, the State admitted a video-recorded interview that 

Fitzgerald conducted with defendant. The video established that on August 10, 2016, defendant 

approached the police to provide information in exchange for assistance with his pending case. 

Defendant told Fitzgerald that he heard that certain individuals were producing methamphetamine.

Defendant had heard that an individual was making methamphetamine at his cousin’s house. 

Defendant knew other people who made methamphetamine, but he did not want to disclose their 

names because some were related to him, and he wanted assurance that he would receive assistance 
8 

with his pending case. Defendant was not involved in his relative’s methamphetamine 

manufacturing. 

¶ 27 During the interview, defendant acknowledged that he had issues with addiction, and he 

had consumed pseudoephedrine pills to cope with this addiction. Defendant explained that he had 

been sober for approximately one year when he met Block. Defendant and Block started drinking 

alcohol together, and Block convinced defendant to purchase boxes of pseudoephedrine. 

Defendant said that he had an addiction, but he was “not a cook.” Defendant also admitted that he 

asked an individual he knew as “Donald” (Burgett) to buy a box of pseudoephedrine for his 

personal use. Defendant also said that if he could not find someone “that wanted” the 

pseudoephedrine pills, he would crush the pills and use them for himself or to treat a cold. 

Defendant noted that sometimes you “could get a high off just snorting them.” 

¶ 28 Krista McCormick testified that she worked for Appriss, Inc., the company that managed 

the NPLEX records. As the records keeper for NPLEX, McCormick had provided to the State 

information from five different dates regarding two different individuals’ pseudoephedrine 

purchases. The purchase logs documented that defendant purchased pseudoephedrine at a 

Walgreens pharmacy on April 29, 2016, at 11:39 a.m., and on July 6, 2016, at 12:36 p.m. 

¶ 29 The State argued in its closing that methamphetamine production was within Fitzgerald’s

range of expertise. The State also argued that Fitzgerald’s testimony established that defendant’s

pseudoephedrine purchase was consistent with methamphetamine production. Defense counsel 

objected to this argument contending that the State’s argument violated the court’s instruction that 

Fitzgerald’s statement was submitted for a limited purpose. The court overruled counsel’s 

objection noting that it will provide a limiting instruction that specifies “certain evidence that was 

admitted only for a limited purpose.” The court later instructed the jury that “[a]ny evidence that 
9 

was received for a limited purpose should not be considered by you for any other purpose.” The 

jury found defendant guilty. 

¶ 30 The court appointed new counsel to represent defendant during the posttrial proceedings. 

Posttrial counsel filed an amended motion for a new trial.

¶ 31 During the posttrial proceedings, defendant claimed trial counsel had provided ineffective 

assistance when he failed to assert a violation of defendant’s statutory right to a speedy trial. The 

court found defendant’s claim did not warrant the appointment of new counsel. 

¶ 32 Judge Thomas Keith heard posttrial counsel’s amended motion for a new trial. Judge Keith 

denied the motion and sentenced defendant to nine years’ imprisonment. Defendant appeals.

¶ 33 II. ANALYSIS

¶ 34 A. Fitzgerald’s Testimony

¶ 35 Defendant argues the court erroneously allowed Fitzgerald to opine that defendant’s

pseudoephedrine purchases were consistent with methamphetamine production. Defendant 

acknowledges that he forfeited this issue when he did not include it in his posttrial motion. See 

People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, he argues that the error is reversible plain 

error because the evidence was closely balanced. 

¶ 36 Illinois Supreme Court Rule 615(a), commonly known as the plain error rule permits a 

reviewing court to excuse a defendant’s procedural default. People v. Sebby, 2017 IL 119445, ¶ 48. 

The supreme court has identified two instances when a court may excuse a defendant’s forfeiture 

under the rule: (1) when “a clear or obvious error occurred and the evidence is so closely balanced 

that the error alone threatened to tip the scales of justice against the defendant, regardless of the 

seriousness of the error,” or (2) when “a clear or obvious error occurred and that error is so serious 

that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial 
10 

process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 

(2007) (quoting People v. Herron, 215 Ill. 2d 167, 186-87 (2005)). The first step under either prong 

of the plain error rule is to determine whether there is a clear or obvious error. Id.

¶ 37 1. Error

¶ 38 Defendant argues Fitzgerald’s opinion testimony that defendant’s purchases of 

pseudoephedrine were consistent with methamphetamine production was erroneously admitted at 

trial because: (1) the statement did not explain the course of Fitzgerald’s investigation—the 

rationale proffered by the circuit court, (2) it could not be admitted as a lay opinion, and (3) it 

could not be admitted as an expert opinion. While the court did not cite the latter two reasons, we 

review the court’s ruling without regard to the validity of its rationale. People v. Reed, 361 Ill. 

App. 3d 995, 1000 (2005). We address each of defendant’s arguments of error in turn.

¶ 39 First, defendant argues the court erred in admitting Fitzgerald’s opinion testimony as 

evidence of the course of the investigation. Generally, a police officer “may recount the steps taken 

in the investigation of a crime, and may describe the events leading up to the defendant’s arrest, 

where such testimony is necessary and important to fully explain the State’s case to the trier of 

fact.” People v. Simms, 143 Ill. 2d 154, 174 (1991). An officer’s statement that explains his course 

of investigation should not be admitted if it reveals unnecessary and prejudicial information. 

People v. Ochoa, 2017 IL App (1st) 140204, ¶ 40. The State may not use the investigatory 

procedure exception “to place into evidence the substance of any out-of-court statement that the 

officer hears during his investigation, but may only elicit such evidence to establish the police 

investigative process.” (Emphasis in original.) Id. ¶ 41. 

¶ 40 The record establishes that Fitzgerald’s testimony that he found defendant’s 

pseudoephedrine purchases to be consistent with methamphetamine production did not explain his 
11 

course of investigation. The only police conduct that occurred after Fitzgerald’s review of 

defendant’s pseudoephedrine purchases was to place defendant under arrest. Fitzgerald did not 

arrange an interview with defendant due to his purchases—defendant voluntarily arranged a 

meeting with the police—and he did not apply for a warrant to search defendant’s person or home. 

Therefore, the course of the investigation exception does not support the introduction of 

Fitzgerald’s opinion.

¶ 41 Second, defendant argues Fitzgerald’s testimony was inadmissible as a lay opinion. Illinois 

Rule of Evidence 701 provides: 

“If the witness is not testifying as an expert, the witness’ testimony in the 

form of opinions or inferences is limited to those opinions or inferences which are 

(a) rationally based on the perception of the witness, and (b) helpful to a clear 

understanding of the witness’ testimony or the determination of a fact in issue, and 

(c) not based on scientific, technical, or other specialized knowledge within the 

scope of Rule 702.” Ill. R. Evid. 701 (eff. Jan. 1, 2011).

¶ 42 Fitzgerald’s opinion was not rationally based on his perception. Fitzgerald did not observe 

either of defendant’s pseudoephedrine purchases. Additionally, defendant did not meet with 

Fitzgerald until August 10, 2016, more than one month after his last purchase. Therefore, 

Fitzgerald’s opinion as to whether defendant’s procurement of pseudoephedrine was consistent 

with methamphetamine production could not be admitted as a lay opinion. 

¶ 43 Third, defendant argues Fitzgerald’s testimony could not be admitted as an expert opinion 

because (1) the State did not disclose Fitzgerald as an expert witness and provide a report of his 

proposed opinions before trial, and (2) the court did not make a finding that Fitzgerald was 

qualified as an expert in the field methamphetamine production. Illinois Rule of Evidence 702 
12 

permits the introduction of expert opinion testimony “If scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue 

***.” Ill. R. Evid. 702 (eff. Jan. 1, 2011). If the State elects to use expert testimony at trial, and 

defense counsel files a written motion to disclose the State’s evidence, then the State must disclose 

“any reports or statements of experts, made in connection with the particular case, *** and a 

statement of qualifications of the expert.” Ill. S. Ct. R. 412(a)(iv) (eff. Mar. 1, 2001). In 

determining whether to admit expert testimony at trial, the court should “balance the probative 

value of the evidence against its prejudicial effect to determine the reliability of the testimony.” 

People v. Lerma, 2016 IL 118496, ¶ 23; see also Ill. R. Evid. 403 (eff. Jan. 1, 2011) (relevant 

evidence “may be excluded if its probative value is substantially outweighed by the danger of 

unfair prejudice”). The decision of whether to admit expert testimony rests with the sound 

discretion of the circuit court. People v. Reatherford, 345 Ill. App. 3d 327, 341 (2003). 

¶ 44 The record establishes that the State did not disclose any reports or statements detailing

Fitzgerald’s expert opinion nor his qualifications as an expert before trial. Additionally, the court’s 

comments that it thought “expert opinions, as a general rule, need to be disclosed ahead of time” 

tends to confirm the State’s failure to disclose Fitzgerald’s expert opinion prior to his testimony. 

As noted by the supreme court in People v. Lovejoy, 235 Ill. 2d 97, 118 (2009), “[d]iscovery rules 

are intended to protect the accused against surprise, unfairness, and inadequate preparation.” 

Therefore, without this disclosure, defense counsel could not adequately prepare his challenge to 

Fitzgerald’s qualifications and opinion. See Ill. S. Ct. R. 412(a)(iv), Committee Comments (rev. 

Mar. 1, 2001). As we find the State’s failure to properly disclose Fitzgerald as an expert witness 

before trial is a plain error, we need not address defendant’s second argument that the court did 

not find that Fitzgerald was qualified to testify as an expert.
13 

¶ 45 For purposes of our plain error analysis, the State’s failure to disclose Fitzgerald’s expert 

testimony constituted a clear or obvious error. Having found error in the admission of Fitzgerald’s 

opinion, we need not address defendant’s second contention—the court did not find that Fitzgerald 

was qualified to testify as an expert in the field of methamphetamine production. Ultimately, due 

to the State’s disclosure error, Fitzgerald’s opinion should not have been admitted into evidence 

as an expert opinion. 

¶ 46 2. Closely Balanced

¶ 47 Having found that the admission of Fitzgerald’s opinion testimony was a plain error, we 

must next determine whether that error is subject to reversal. Defendant argues, under the first 

prong, that this plain error is reversible because the evidence was so closely balanced that the error

alone tipped the scales of justice against him.

¶ 48 Under the first prong of the plain error rule, defendant has the burden to show “the evidence 

was so closely balanced that the error alone severely threatened to tip the scales of justice.” Sebby, 

2017 IL 119445, ¶ 51. Under this prong, prejudice is not presumed. Id. An error is prejudicial not 

because it is serious, but because “it occurred in a close case where its impact on the result was 

potentially dispositive.” Id. ¶ 68. To determine whether the evidence was close, we “must evaluate 

the totality of the evidence and conduct a qualitative, commonsense assessment of it within the 

context of the case.” Id. ¶ 53. This analysis involves an assessment of the evidence on the elements 

of the charged offense and any evidence regarding the witnesses’ credibility. Id.

¶ 49 The State charged defendant with unlawful possession of a methamphetamine precursor. 

720 ILCS 646/20(a)(1) (West 2016). This charge required the State to prove that defendant: 

“[K]nowingly possess[ed], procure[d], transport[ed], store[d], or deliver[ed] any 

methamphetamine precursor or substance containing any methamphetamine 
14 

precursor in standard dosage form with the intent that it be used to manufacture 

methamphetamine or a substance containing methamphetamine.” Id. 

¶ 50 We find the evidence in this case to be closely balanced. In particular, the evidence of 

defendant’s “intent that [the pseudoephedrine] be used to manufacture methamphetamine” was 

almost entirely based on Fitzgerald’s opinion testimony. (Emphasis added.) Id. The direct evidence 

established that defendant purchased 2.88 grams of pseudoephedrine, a methamphetamine 

precursor, from Walgreens on April 29, 2016, and an additional 2.88 grams on July 6, 2016. Both 

of these purchases were well below the 7500 milligram purchase limit and occurred more than 30 

days apart. See 720 ILCS 648/20(b) (West 2016). Facially, these purchases were lawfully made. 

This evidence conclusively showed that defendant knowingly possessed a methamphetamine 

precursor. It does not show that defendant intended that that precursor be used to manufacture 

methamphetamine. This is especially true when viewed in conjunction with defendant’s unrebutted 

assertion that he took pseudoephedrine to treat his allergies and he told Burgett that he needed the 

medication for his allergies—a lawful use of the medication. 

¶ 51 Burgett’s testimony that he purchased pseudoephedrine on April 29, 2016, at defendant’s 

direction, similarly fails to show an intent to manufacture methamphetamine. Burgett purchased a 

lawful amount of pseudoephedrine—2.88 grams. See id. However, because Burgett made the 

purchase at defendant’s behest and defendant received the package from Burgett, he arguably 

violated subsection 20(f) of the Methamphetamine Precursor Control Act. Id. § 20(f). This 

potential violation does not, however, inferentially establish that defendant, by acquiring the 

pseudoephedrine by an unlawful means, intended that it be used to manufacture 

methamphetamine. The only inference from Burgett’s testimony that finds support in the record is 

that defendant directed Burgett to purchase the pseudoephedrine to feed his addiction to the 
15 

precursor itself. Supra ¶ 27. While Burgett’s testimony is potentially indicative of other uncharged 

offenses, it fails to establish an intent to manufacture methamphetamine.

¶ 52 The remaining evidence similarly fails to establish an intent to manufacture 

methamphetamine. During the police interview, defendant told Fitzgerald that he knew individuals 

who manufactured methamphetamine. Viewed in context, defendant made this statement in an 

attempt to secure a plea agreement in his pending case. Moreover, simply knowing individuals that 

manufacture methamphetamine does not establish that defendant intended to seek these 

individuals’ assistance in April or July 2016 to convert the pseudoephedrine that he and Burgett 

purchased into methamphetamine. Additionally, defendant told the officer that he consumed the 

pseudoephedrine in its unaltered state to treat cold symptoms and cope with his addiction. In 

furtherance of this explanation, defendant noted that he could obtain a high from the 

pseudoephedrine by crushing and snorting it. At best, this evidence indicated that defendant may 

have used methamphetamine in the past and had consumed pseudoephedrine to get high. It did not 

show that defendant intended, in April and July 2016, to manufacture methamphetamine from the 

pseudoephedrine that he and Burgett purchased. To the contrary, defendant expressly told the 

police that he was “not a cook.” Nothing in the video expressly rebutted defendant’s claim. 

¶ 53 Defendant’s telephone call to his mother about the purported methamphetamine or 

methamphetamine precursor in the garage also did not establish an intent to manufacture 

methamphetamine. Instead, this evidence suggested that defendant might possess 

methamphetamine—an offense that was not charged in this case. Moreover, there was no 

indication on the recording that the garage contained other materials indicative of

methamphetamine manufacturing. See, e.g., People v. Wilke, 367 Ill. App. 3d 130, 132 (2006) 

(noting that while an individual could legally possess pseudoephedrine, brillo pads, a cooler, a 
16 

strainer, a clear plastic jug, some gas tanks, another gas tank with PVC piping, boxes of Miracle 

Grow plant food, white jugs with spray tops, bottles of Heet, and a lithium battery, they are 

ingredients in methamphetamine production). The only indication from the call was that there 

might be powder or pills located in the garage. While powders and pills could be part of the 

methamphetamine production process they also could be attributed to other criminal and lawful 

acts. This statement was too generic to establish the specific intent required for the charged offense.

¶ 54 Defendant also directed his mother to sell some items to raise money. Notably, defendant 

did not directly reference selling methamphetamine or precursors, but instead suggested that his 

mother sell his Link card, a stereo, and a refrigerator. These statements did not indicate an intent 

to manufacture methamphetamine. Even if defendant’s statement to his mother that she needed to 

learn how to “hustle” is construed as a suggestion that she sell methamphetamine or precursors, 

this only establishes an intent to deliver methamphetamine, not produce it. 

¶ 55 The clearest evidence of defendant’s intent came from Fitzgerald’s opinion testimony. As 

an expert witness, Fitzgerald could rely on his training and experience to link together the 

inferences from the other evidence and opine that this evidence showed defendant’s intent to 

manufacture methamphetamine. However, because the court committed plain error in admitting 

this testimony, and the remaining evidence of defendant’s intent was close, and the “impact [of 

this error] on the result was potentially dispositive.” Sebby, 2017 IL 119445, ¶ 68. Accordingly, 

we reverse defendant’s conviction and remand for a new trial.2

¶ 56 B. Speedy Trial Right 

2

Due to our plain error ruling, we need not address defendant’s alternative argument that the error 

was the result of ineffective assistance of counsel.
17 

¶ 57 Defendant argues trial counsel provided ineffective assistance when he surrendered 

defendant’s bond in case No. 14-CF-405. As a result of the surrender, defendant was in 

simultaneous custody and subject to the 160-day statutory speedy trial timeline instead of the 

otherwise applicable 120-day timeline. We find that the record is insufficient to discern whether 

counsel’s decision to surrender defendant’s bond in case No. 14-CF-405 was strategic, and 

therefore, we take no position on this issue. 

¶ 58 A criminal defendant has a constitutional right to the effective assistance of counsel. U.S. 

Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. As we noted with regard to the first issue, to 

prevail on a claim of ineffective assistance of counsel, defendant must show that: (1) counsel’s 

performance was deficient, and (2) but for counsel’s deficient performance the result of the 

proceeding would have been different. Strickland, 466 U.S. at 694. Generally, a defendant must 

raise his claim of ineffective assistance of counsel in his direct appeal or risk forfeiting the claim.

People v. Veach, 2017 IL 120649, ¶ 47. Additionally, issues that could have been raised on direct 

appeal are deemed procedurally defaulted. Id. Despite the well-established preference that 

ineffective assistance of counsel claims be brought on direct appeal, some of these claims may 

occasionally be better suited to collateral proceedings when “the record is incomplete or 

inadequate for resolving the claim.” Id. ¶ 46. 

¶ 59 After reviewing the records in both case No. 14-CF-405 and the present case, we find 

defendant’s ineffective assistance claim to be better suited for a collateral proceeding. In this direct 

appeal, defendant contends that counsel’s action to surrender his bond in case No. 14-CF-405 

adversely impacted him in the present case. Looking narrowly at the record in the instant case, the 

harm caused by the bond surrender is plainly apparent—it set the speedy trial clock in the instant 

case to 160 days, instead of 120 days. See 725 ILCS 5/103-5(e) (West 2016) (“If a person is 
18 

simultaneously in custody upon more than one charge pending against him in the same county 

***. Such person shall be tried upon all of the remaining charges thus pending within 160 days 

from the date on which judgment relative to the first charge thus prosecuted is rendered ***.”). 

However, the record of the hearing when counsel surrendered defendant’s bond in case No. 14-

CF-405 makes clear that the record does not fully explain rationale for the surrender. At the 

hearing, Hoppock said “I spoke to [defendant] on Friday, along with [Public Defender] Taylor, 

and [defendant] is surrendering himself on his bond in the traffic cases.” Counsel’s reference to 

his prior conversations indicates that some consideration went into the decision to surrender the 

bond. As this is counsel’s only reference to the bond surrender, we are unable to discern if there 

was a strategic reason that is unique to case No. 14-CF-405 that motivated counsel to surrender 

the bond. Therefore, we find that this ineffective assistance of counsel issue is better suited for a 

collateral proceeding where defendant can supplement the record with evidence of his 

conversation with counsel as to the reasons or lack thereof for the bond surrender. Accordingly, 

we take no position on the merits of this issue.

¶ 60 C. Motion to Strike Transcript of Telephone Conversation 

¶ 61 Defendant filed a motion to strike the transcript of defendant’s telephone call from the 

Tazewell County jail to his mother. We grant defendant’s motion as the State did not move to 

supplement the record with this transcript, and it is not part of the trial record. Moreover, we did 

not consider the transcript in reaching our decision, and instead, relied on the telephone recording 

admitted at trial and played for the jury.

¶ 62 III. CONCLUSION

¶ 63 The judgment of the circuit court of Tazewell County is reversed and remanded. 

¶ 64 Reversed and remanded.
19 

¶ 65 JUSTICE SCHMIDT, dissenting: 

¶ 66 The evidence was not closely balanced. Therefore, we should honor defendant’s forfeiture 

of any error regarding expert testimony. The majority attacks each piece of evidence indicating 

that defendant intended the pseudoephedrine be used to manufacture methamphetamine. While I 

agree that no one piece of evidence alone establishes defendant’s criminal intent, we “must 

evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it 

within the context of the case.” Sebby, 2017 IL 119445, ¶ 53. The majority discusses this evidence. 

Supra ¶¶ 50-54. Taken as a whole, the evidence is not closely balanced.

¶ 67 I would affirm.