NO. 4-02-0890

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

A jury found defendant, Bradley K. Gentry, guilty ofmanufacturing 400 grams or more of methamphetamine solution (720 ILCS570/401(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 of15 and 8 years' imprisonment.

Defendant appeals on the following grounds. First, thetrial court denied his right to due process by failing to hold afitness hearing after scheduling one. Second, the State failed toprove the methamphetamine solution he manufactured weighed 400 gramsor more. Third, the court denied him due process and failed to honorRule 412 (188 Ill. 2d R. 412) by declining to dismiss the manufacturing count as a sanction for the State's loss or destruction ofevidence. Fourth, the court abused its discretion in denying hisrepeated motions for mistrial. Fifth, his trial counsel renderedineffective assistance by failing to question the potential jurorsmore thoroughly about their ability to remain impartial after learning of his prior arrest. Sixth, he was denied his constitutionalright to be present during voir dire.

We disagree with all those contentions except the secondone. Because no one weighed the methamphetamine solution other thana 39.4-gram sample, the State failed to prove defendant manufacturedmore than 39.4 grams. Therefore, we remand this case with directionsto reduce the conviction on count I of the information to the manufacture of 39.4 grams of methamphetamine solution, as opposed to 400grams or more, and to resentence defendant accordingly (720 ILCS570/401(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 inColes 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 ILCS570/402(a)(6.5)(C) (West 2000)). Count III charged him with possessing pseudoephedrine "with intent to manufacture 30 grams or more butless than 150 grams of any substance containing methamphetamine." 720 ILCS 570/401(a)(6.6)(A) (West 2000). Count IV repeated count IIIexcept it alleged an intent to manufacture a lesser amount: "15grams or more but less than 30 grams" (720 ILCS 570/401(c-5) (West2000)).

On April 20, 2001, defense counsel personally served amotion for disclosure upon the State. The motion requested any"photographs[] or tangible objects" the prosecutor intended to use attrial "or which were obtained from or belonged to the accused" aswell as "[a]ny material *** within the State's possession or control[that tended] to negate [defendant's] guilt *** [or] reduce hispunishment." On May 7, 2001, the prosecutor told the trial court hehad provided defense counsel "with copies of all the discovery."

On July 31, 2001, over defendant's objection, defensecounsel filed a motion for an examination of defendant to assess hisfitness to stand trial. In response, the prosecutor told the trialcourt: "Based on not only my conversations with [defendant's currentand previous attorneys] but also on what I know about this defendant,I think that this is a bona fide request. I have no objection tothis defendant['s] being examined." The court granted the motion andappointed a psychologist, Dr. Jerry L. Boyd, to examine defendant.

Boyd examined defendant on August 3, 2001, and in hiswritten report, opined that defendant "had adequate ability tocooperate 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 founddefendant fit for trial. With the agreement of the parties, thecourt nevertheless scheduled a fitness hearing for September 4, 2001. The parties told the court they anticipated presenting no evidence atthe hearing other than Boyd's report.

On September 4, 2001, the prosecutor, defense counsel, anddefendant appeared, and the trial court asked the attorneys: "Whatcan I address?" The prosecutor replied: "Judge, at this point, Ithink all we need is a trial date." Defense counsel did not disagree, and until this appeal, neither party ever again mentioned theneed for a fitness hearing. Nor did the court make any expressfinding 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 aMattoon police officer. "I don't remember [defendant's] name," hesaid, "but I was with an officer[,] and we've arrested [defendant]before." Defense counsel moved for a mistrial because of what Hodgessaid. The trial court denied the motion but excused Hodges forcause.

Another potential juror, Tony Shellaburger, told the trialcourt that after hearing Hodges allude to the prior arrest, he"[k]ind of" had "reservations" about his ability to "be fair to bothsides." The court denied defendant's renewed motion for a mistrialbut also excused Shellaburger for cause.

Another potential juror, Janice McMorris, told the trialcourt that she and her husband worked for State Farm InsuranceCompany. "We may have Steve Becker's insurance," she said, "but Idon't know him well enough that--that it would affect me." Beckerwas a State witness who testified pursuant to a plea agreement. According to Becker's testimony at trial, defendant accompanied himwhen he stole anhydrous ammonia from a local fertilizer company. Becker also identified defendant as the owner of a bicycle parked at1308 Moultrie Avenue, Mattoon, the site of the methamphetaminelaboratory. The bicycle had a pouch containing lithium and crushedpseudoephedrine pills--materials for making methamphetamine. Defensecounsel accepted a panel that included McMorris, and she was sworn asa juror.

Although defendant was present during the actual questioning of venire members, he did not attend two in camera meetings orapproach the bench for a side-bar conference, in which the attorneysand trial court discussed challenges for cause, peremptory strikes,and the motions for mistrial.

On March 19, 2001, the police noticed the garage at 1308Moultrie Avenue reeked of anhydrous ammonia and ether. Inside thegarage, they found two transparent quart jars containing a liquidsolution; three "punched" cans of starting fluid; and a gallon can ofcamping fuel, partially full. The solution field-tested positive foranhydrous ammonia and methamphetamine. The police collected approximately 25 milliliters of solution from each jar and sent it to thecrime laboratory, which confirmed the presence of methamphetamine bymore thorough chemical testing. The laboratory also found organicsolvent in the samples.

Because the East Central Illinois Drug Task Force (TaskForce) owned no scale in March 2001, no one actually weighed all ofthe solution in the jars. After the police collected the two 25-milliliter samples, a hazardous-waste disposal company came to thesite, removed the jars of remaining solution, and destroyed them. The solution was highly inflammable, and its fumes were toxic;therefore, handling and storing more than a minuscule amount of itwould have been dangerous, according to the person in charge of theevidence vault.

Manufacturers of methamphetamine typically stored theliquid form of their product in quart jars like the ones in thiscase. Lacking a scale at the time, the Task Force customarily tookphotographs of the jar with a ruler beside it, and the crime laboratory used the photographs to calculate the volume and weight of thesolution. At least one police officer, maybe more, took photographsin this case, but the photographs are lost. Nobody seems to knowwhat happened to them or when they disappeared.

The crime laboratory weighed the two 25-milliliter samples: 19.9 grams and 19.5 grams, a total of 39.4 grams. At trial,three police officers--Jamie Bowersock, Doug Livingston, and ScottStanderfer--estimated the weight of the remaining solution (which,along with the jars, had been destroyed).

According to Bowersock's report, the jars were half full. He testified that in his experience, a quart jar one-fourth full ofmethamphetamine solution weighed between 300 and 400 grams, notincluding the weight of the jar. A quart jar full of solutionweighed between 900 and 1,000 grams. The trial court overruleddefendant's foundation objection.

Also over defendant's foundation objection, Livingstontestified that "[e]ther *** weigh[ed] approximately 21 grams perounce" and thus, in his estimation, the two half-full jars containeda total of more than 600 grams of liquid.

Standerfer testified that "of [his] own personal knowledgeand recollection," "[a]bout half a quart [of solution was] in eachjar." A quart consisted of 32 fluid ounces, and according to him,one fluid ounce of diethel ether weighed 21 grams.

The jury found defendant guilty of counts I and IV and notguilty of count III. The jury was hung on count II, and the Statedismissed that count. For count I, the trial court sentenced defendant to 15 years' imprisonment; for count IV, 8 years' imprisonment. This appeal followed.II. ANALYSIS

One presumes every defendant is fit to stand trial. 725ILCS 5/104-10 (West 2002). Only if, from an objective point of view,the circumstances raise a "bona fide doubt"--that is, "a real,substantial[,] and legitimate doubt" (People v. Eddmonds, 143 Ill. 2d501, 518, 578 N.E.2d 952, 959 (1991))--of the defendant's fitnessdoes the defendant have a right to a fitness hearing. 725 ILCS5/104-11(a) (West 2002). We ask whether the trial court abused itsdiscretion in finding a bona fide doubt or lack of doubt. People v.Murphy, 72 Ill. 2d 421, 431, 381 N.E.2d 677, 682 (1978).

Defendant argues "the trial court ipso facto determinedthat a bona fide doubt existed as to [his] fitness when it orderedthe evaluation." (Emphasis added.) We disagree. Because a courtcan order an examination for the very purpose of determining whether"a bona fide doubt as to *** fitness *** may be raised" (725 ILCS5/104-11(b) (West 2002)), it must follow that merely ordering such anexamination does not necessarily imply a finding of bona fide doubt. People v. Hill, 345 Ill. App. 3d 620, 626, 803 N.E.2d 138, 144(2003); People v. Vernon, 346 Ill. App. 3d 775, 777-78, 805 N.E.2d1222, 1225 (2004).

In this case, the trial court did more than order anexamination; with the agreement of the parties, it scheduled afitness hearing. We have held that if a court schedules a fitnesshearing, due process requires the court to actually hold the fitnesshearing, notwithstanding psychological reports finding the defendantto be fit. In re T.D.W., 109 Ill. App. 3d 852, 855, 441 N.E.2d 155,157 (1982). We now overrule T.D.W. To hold a fitness hearing, thecourt must first hear evidence raising a bona fide doubt of thedefendant's fitness. Eddmonds, 143 Ill. 2d at 518, 578 N.E.2d at959. Even our deferential standard of review requires some evidenceby which a reasonable person could find bona fide doubt. See Peoplev. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519 (1991). If acourt can create a right to a fitness hearing merely by schedulingone, we have effectively dispensed with the requirement of evidence,in violation of Eddmonds. Boyd opined defendant was fit, and therecord appears to contain no evidence to the contrary. We find noabuse of discretion in omitting a fitness hearing.

Defendant argues that the destruction of the methamphetamine and loss of the photographs, without any resulting sanction bythe trial court, violated his right to due process. We disagree.

The State violates due process if it loses or destroysevidence having an exculpatory value that is apparent at the time ofthe loss or destruction. California v. Trombetta, 467 U.S. 479, 489,81 L. Ed. 2d 413, 422, 104 S. Ct. 2528, 2534 (1984). Defendant hasfailed to show that the methamphetamine solution in the jars or thephotographs had any exculpatory value whatsoever. "[T]he most thatcan be said of the [lost or] destroyed evidence is that it had thepotential to exonerate [the defendant]" (In re C.J., 166 Ill. 2d 264,274-75, 652 N.E.2d 315, 320 (1995))--and, by the same token, thepotential to banish any hope of exoneration. It appears the State"had at least as great an interest in preserving the evidence as didthe person later accused of the crime." Arizona v. Youngblood, 488U.S. 51, 59, 102 L. Ed. 2d 281, 290, 109 S. Ct. 333, 338 (1988)(Stevens, J., concurring).

If the State destroys evidence that is potentially usefulto the defense (instead of obviously exculpatory), the defendant mustshow the State did so in bad faith. Youngblood, 488 U.S. at 58, 102L. Ed. 2d at 289, 109 S. Ct. at 337; Illinois v. Fisher, 540 U.S.___, ___, 157 L. Ed. 2d 1060, 1067, 124 S. Ct. 1200, 1203 (2004). Mere negligence or sloppiness is not bad faith. Youngblood, 488 U.S.at 58, 102 L. Ed. 2d at 289-90, 102 S. Ct. at 337; People v.Tsombanidis, 235 Ill. App. 3d 823, 832, 601 N.E.2d 1124, 1131 (1992). According to the unrebutted testimony at trial, when members of theTask Force seized methamphetamine solution, they routinely destroyedall but a small sample of it because storing large amounts of it inthe evidence vault was dangerous and impractical. The police had todon respiratory masks just to enter the garage in which they foundthe two jars. Destroying hazardous material pursuant to a routine,well-intentioned policy cannot be bad faith. See C.J., 166 Ill. 2dat 273-74, 652 N.E.2d at 320. The loss of the photographs was, atworst, negligence. "The record contains no allegation of officialanimus towards [defendant] or of a conscious effort to suppressexculpatory evidence." Trombetta, 467 U.S. at 488, 81 L. Ed. 2d at422, 104 S. Ct. at 2533. We find no evidence of bad faith in eitherthe destruction of the jars of methamphetamine solution or the lossof the photographs, and thus we find no violation of due process inthat regard. See Fisher, 540 U.S. at ___, 157 L. Ed. 2d at 1066-67,124 S. Ct. at 1203.

Nor do we find any violation of Rule 412 (188 Ill. 2d R.412). Except for the 25-milliliter samples, the methamphetaminesolution was not "within [the State's] possession or control" whendefendant filed his discovery motion. See 188 Ill. 2d R. 412(a). The record appears to contain no evidence that the photographs werestill in existence and therefore in the State's "possession orcontrol" when defendant requested them in discovery (see 188 Ill. 2dR. 412(a)(v)) or that the photographs or the rest of the solutionwould have tended to negate his guilt or reduce his punishment (see188 Ill. 2d R. 412(c)).

Defendant argues that because no one actually weighed thesolution in the two jars (other than 39.4 grams of it), the Statefailed to prove he manufactured 400 grams or more of a substancecontaining methamphetamine, as charged in count I (720 ILCS570/401(a)(6.5)(C) (West 2000)). We agree.

Citing our decisions in People v. Roy, 172 Ill. App. 3d16, 25, 526 N.E.2d 204, 209 (1988), and People v. Eichelberger, 189Ill. App. 3d 1020, 1027, 546 N.E.2d 274, 278 (1989), the State arguesthat "a quantitative procedure need not have been used to determinethe weight of the substance." In Eichelberger, 189 Ill. App. 3d at1027, 546 N.E.2d at 278, the identity of the powder as cocaine was atissue, not its weight. Just because someone who has used cocaine inthe past can identify a substance as cocaine by paying an exorbitantprice for it, ingesting it, and "getting high" (Eichelberger, 189Ill. App. 3d at 1028, 546 N.E.2d at 279), it does not follow thatsomeone, by his or her unaided senses, can reliably conclude that thesolution in two "approximately" half-full quart jars weighs a totalof 400 grams or more.

In Roy, 172 Ill. App. 3d at 25, 526 N.E.2d at 209, thedefendant contended "there was no evidence to support a finding ofthe requisite amount of drugs." We responded: "There was testimonywhich indicated [the drug dealer] purchased four ounces of cocaineworth in excess of $7,000 ***[,] which was part of '20 to 30 ounces'received by [the drug dealer] from the defendant." Roy, 172 Ill.App. 3d at 25, 526 N.E.2d at 209. Because of the high price ofcocaine ($1,800 to $1,900 per ounce (Roy, 172 Ill. App. 3d at 19, 526N.E.2d at 205)), one might expect traffickers in that commodity wouldbe scrupulous about weighing it. In the present case, there appearsto be no evidence that the methamphetamine solution in the jars hadbeen weighed in contemplation of a sale.

Further, it does not appear, from our reported opinion inRoy, that the defendant in that case ever objected to the drugdealer's testimony on the ground of a lack of foundation. If thedefendant never did so, he conceded the adequacy of the foundation,and the sufficiency of the evidence was unaffected as if an adequatefoundation had in fact been laid. See People v. Besz, 345 Ill. App.3d 50, 55, 802 N.E.2d 841, 846 (2003). In the present case,defendant made repeated foundation objections to Bowersock's andLivingston's testimony. If those objections were valid, we shoulddisregard the inadmissible testimony, and the resulting gap in theState's case could, as defendant contends, make the evidenceinsufficient to convict him of manufacturing 400 grams or more ofmethamphetamine solution, as charged.

Hypothetically, for illustration, let us assume Bowersocktestified he weighed all of the solution on a brand-new, state-of-the-art digital scale. Further assume that defendant objected to thetestimony on the ground of a lack of foundation. The trial courtshould have sustained the objection. "The foundation for [the policeofficer's] testimony concerning the weight of the substance was notsufficiently proved in absence of testimony that verified theaccuracy of the scale." People v. Speed, 106 Ill. App. 3d 890, 896,436 N.E.2d 712, 716 (1982); see People v. Payne, 239 Ill. App. 3d698, 709, 607 N.E.2d 375, 383 (1993).

Bowersock testified that, in his experience, a quart jarone-fourth full of methamphetamine solution weighed 300 to 400 grams. Livingston testified that pure ether weighed 21 grams per ounce. They could not have testified to those weights unless someone--sometime, somewhere--had weighed methamphetamine and ether on ascale. On appeal, defendant does not specifically argue a lack offoundation, but we find the lack of foundation to be inextricablytwined with the issue he does raise: the sufficiency of theevidence--in particular, the sufficiency of the evidence of gramweight. "Laying a foundation" means "[i]ntroducing evidence ofcertain facts needed to render later evidence relevant, material, orcompetent." Black's Law Dictionary 896 (7th ed. 1999). If evidenceof scale weight is insufficient or incompetent without predicateevidence that the scale is accurate (Speed, 106 Ill. App. 3d at 896,436 N.E.2d at 716), we do not see how evidence of the scale weight ofother jars of solution besides the ones in this case, withoutevidence of the accuracy of those scales, could be sufficient,either. In short, we do not see how "eyeballing it" will suffice ifcase law, in the interest of accuracy, imposes an exactingfoundational requirement when somebody testifies to actually puttingthe object on a scale and weighing it.

Standerfer testified, hypothetically, that a fluid ounceof diethel ether weighed 21 grams. One could not use that testimonyto calculate the minimum weight of the solution in the two jars;there appears to be no evidence that ether was the only liquid thejars contained. The police also found a partly empty can of campingfuel, and it is unclear that camping fuel is the same thing as ether. The record appears to contain no evidence that starting fluid, orether, weighs as much as, or more than, camping fuel. Further,comparing the jars of solution in this case to other jars of solutionassumes the same proportion of ingredients in the two groups of jars,an assumption that appears to have no basis in the record.

Looking at the evidence in a light most favorable to theprosecution (People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267,277 (1985)), we find the State proved defendant manufactured only39.4 grams of methamphetamine solution, not 400 grams or more. Wedirect the trial court to reduce the conviction on count Iaccordingly (720 ILCS 570/401(a)(6.5)(A) (West 2000)).

Defendant contends that "information concerning [his]prior arrest was extremely prejudicial" and "the trial court'sfailure to declare a mistrial after these statements were made denied[him] a fair trial." He cites People v. Keegan, 52 Ill. 2d 147, 286N.E.2d 345 (1971), People v. Jones, 105 Ill. 2d 342, 475 N.E.2d 832(1985), and People v. Rogers, 135 Ill. App. 3d 608, 482 N.E.2d 639(1985), among other authorities.

The prior arrest was, of course, irrelevant to any issuein this case (see Rogers, 135 Ill. App. 3d at 627, 482 N.E.2d at652), but unlike the jury in Rogers, 135 Ill. App. 3d at 625, 482N.E.2d at 651, the venire in this case never learned the reason forthe arrest; it could have been a mundane traffic offense or even amistake by the police. The bare fact of defendant's prior arrest isnot even remotely comparable, in its prejudicial impact, to thescandalous newspaper article in Keegan, 52 Ill. 2d at 155, 286 N.E.2dat 349, or the racist joke in Jones, 105 Ill. 2d at 350, 475 N.E.2dat 836. We find no clear abuse of discretion in the denial ofdefendant's motions for mistrial. See People v. Sims, 167 Ill. 2d483, 505, 658 N.E.2d 413, 423 (1995).E. Alleged Ineffective Assistance of Counsel

Upon denying defense counsel's second motion for amistrial, the trial court told her she could question the remainingvenire members to ascertain whether they, too, like Shellaburger,felt their impartiality was compromised by knowledge of defendant'sprior arrest. Defense counsel declined to do so, and defendantclaims that omission was so egregious and harmful as to amount toineffective assistance of counsel.

After Hodges revealed the prior arrest, defense counselasked the venire members if they had learned anything thus far thatwould affect their ability to be fair and impartial. They said no. When the trial court denied her second motion for a mistrial, defensecounsel had to make a decision: she could either question the veniremembers more intensively on the prior arrest--at the risk ofemphasizing it and signaling it had a greater importance than thevenire members might have otherwise thought it deserved--or she couldhave taken their word for it that their ability to be impartial wasunimpaired. She chose the latter option--arguably, a wise choice(see People v. Lewis, 88 Ill. 2d 129, 158, 430 N.E.2d 1346, 1360(1981) ("some attorneys would think it best to say nothing at all,thus lessening the impact on the jury by not emphasizing thematter")). Wise or not, it was a tactical decision (see Lewis, 88Ill. 2d at 158, 430 N.E.2d at 1360), which can never amount toineffective assistance of counsel (see People v. Whitamore, 241 Ill.App. 3d 519, 525, 608 N.E.2d 1304, 1310 (1993)).

During voir dire, the trial court and attorneys had an incamera meeting, in which the court granted defense counsel's requestto dismiss Hodges for cause and denied her first motion for amistrial. The court also stated its intention to dismiss three otherpotential jurors for cause, whereupon the attorneys exercisedperemptory challenges. Defendant did not personally attend thisfirst in camera meeting. Although the court never personally askeddefendant if he wished to attend, defense counsel told the court herclient was "waiving his right to be [t]here."

Citing People v. Mallett, 30 Ill. 2d 136, 141-42, 195N.E.2d 687, 690 (1964), among other authorities, defendant argues hisattorney had no power to waive his right to be personally present atthe in camera meeting but that only he himself could have done so bydirect communication with the trial court. He argues that because hewas absent from the meeting, he missed a discussion of theprejudicial impact of Hodges's comments as well as the first motionfor mistrial. He also claims his absence foreclosed him fromoffering any "input into defense counsel's use of a peremptorychallenge."

In the second in camera meeting during voir dire, thetrial court asked defense counsel: "[D]oes your client want to bewith us?" She replied:

"MS. GARRETT: No, Your Honor.

THE COURT: Okay, and you have told himthat he can be here if he wants to be?

MS. GARRETT: Yes, Your Honor."

With the concurrence of the parties, the court decided to dismissthree potential jurors for cause, including Shellaburger. Because ofShellaburger's comments, defense counsel renewed her motion formistrial, which the court denied. After exercising peremptorychallenges, the attorneys accepted a panel that included McMorris,who had said she was acquainted with Becker in his capacity as aclient of State Farm Insurance Company, her employer.

Defendant complains that because of his absence from thissecond in camera meeting, "he had no input into defense counsel's useof the peremptory challenge or counsel's decision to accept a jurypanel [that] included *** McMorris." He theorizes it is "possib[le]"that McMorris "had an impact on the outcome of the case, based on herspecial knowledge of *** Becker."

After the two in camera meetings and further questioningof the venire, the trial court called a side-bar conference, in whichthe court granted defense counsel's request to dismiss two potentialjurors for cause and defense counsel exercised a peremptorychallenge.

Defendant complains the trial court never asked if hewanted to attend the side-bar conference and "he was unable to haveany input into his counsel's use of peremptory challenges."

According to defendant, "Illinois courts have not resolvedwhether the defendant's right to be present applies during jurychallenges." We disagree. In People v. Beacham, 189 Ill. App. 3d483, 491, 545 N.E.2d 392, 398 (1989), "voir dire was conducted inopen court, after which the attorneys retired to the judge's chambersto exercise challenges." The defendant was present during the actualquestioning of venire members and had an opportunity to consult withcounsel regarding who should serve on the jury, but he did notaccompany counsel into the judge's chambers, where "the jurorchallenges were made." Beacham, 189 Ill. App. 3d at 491, 545 N.E.2dat 398. The First District found "little merit" in the defendant'sargument that he had been excluded from a critical portion of theproceedings: "peremptory challenges may be exercised outside thepresence of the defendant as long as the defendant is given theopportunity to confer with counsel beforehand." Beacham, 189 Ill.App. 3d at 492, 545 N.E.2d at 398, citing People v. Spears, 169 Ill.App. 3d 470, 483, 525 N.E.2d 877, 886 (1988).

In the present case, no venire members were questionedoutside defendant's presence or hearing. Nothing prevented him fromconferring with his counsel on the composition of the jury and themotions for mistrial. Just because he was not present when thechoices and arguments were actually communicated to the trial court,it does not follow that his "participation in the jury selection was*** so limited as to deny him a fair trial." Presumably, defensecounsel took into account any "input" from defendant when she actedon his behalf during the in camera meetings and side-bar conference.

For the foregoing reasons, we remand this case withdirections to reduce the conviction on count I to the manufacture of39.4 grams of a substance containing methamphetamine and to hold anew sentencing hearing (720 ILCS 570/401(a)(6.5)(A) (West 2000)).

Remanded with directions.

COOK and STEIGMANN, JJ., concur.