author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH PETERSON, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 91—2271
    Opinion filed June 1, 1993.

      Daniel J. Stohr, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Cory J. Pollack, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was convicted by a jury of possessing a controlled substance with intent to deliver. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2).) He was sentenced to six years in custody of the Department of Corrections.

On appeal defendant raises as issues whether (1) the stop, search and seizure involved in his arrest was constitutional; (2) his right to remain silent upon arrest was improperly considered by the jury; (3) prosecutorial argument deprived him of a fair trial; and (4) he was denied effective assistance of counsel. We affirm.

At trial, Chicago police officer Russ Willingham testified that on December 3, 1988, at about 12:45 a.m. he and his partner, Officer Kevin Gyrion, received a radio transmission of “[a] man shot at 43rd and Lamond.” As the officers approached the area, they observed a vehicle, without license plates, being driven at a fast speed from the area where the shooting reportedly had occurred. They activated their lights and attempted to pull the vehicle over. After pursuit of one block, they stopped the vehicle, which contained four people.

When the officers alighted from the squad car, Officer Willingham walked to the passenger side of the subject vehicle and Officer Gyrion went to the driver’s side. Willingham observed defendant, who was sitting on the rear passenger side, bend forward. As defendant exited the vehicle, he placed something into his right pocket. Defendant then attempted to walk away. Willingham stopped him and brought him back to the car. Willingham saw a large clear plastic bag containing money and a white substance protruding from defendant’s right coat pocket. After taking the bag, Willingham discovered inside individual packages of white powder, later found to be 37 in number, of which 36 contained cocaine, commingled in the larger bag with currency, later found to be $209 in small bills. Willingham also related that as Gyrion was searching the driver, the driver pushed Gyrion and fled.

During the course of their investigation, the officers found no connection between that car or its occupants and the radio shooting advisory. No weapons were recovered. Officer Willingham identified defendant in court.

Officer Gyrion’s testimony substantially tracked that of Officer Willingham, stating that the car carrying the four individuals was moving extremely fast for a residential street, and that the car would not pull over for one block after they activated the squad’s lights and siren. Once the driver exited the car, he conducted a pat-down search of the driver’s jacket and then his pants, looking for a gun or weapon. A huge bulge was found in the driver’s groin area. Gyrion unzipped the driver’s pants and noticed a clear plastic baggie containing a white powdery substance. The driver pushed Gyrion and ran. Gyrion did not chase the driver because he did not want to leave his partner with the remaining three people. When the car was stopped, Gyrion did not know whether the car was connected to the shooting. Gyrion identified defendant in court.

Chicago police department chemist Gwendolyn Brister testified as an expert in forensic chemistry. She analyzed the substances taken in the stop and search and determined that 36 of the 37 packages contained about 18 grams of cocaine. The State rested.

For the defense, Ronald Lee testified that on December 3, 1988, at about 12 a.m., he was walking with his brother Mario Lee on 43rd Street toward their home located at 4645 South Lamond. They were offered a ride in a car driven by a man named Frank, and defendant, who was in the front passenger seat. Defendant got in the back and Ronald got in the front seat. Mario got in on the driver’s side in the back. Neither defendant nor Frank was wearing a coat. One-half block from the Lees’ house, a police car pulled them over. The officers asked them to step out of the car with their hands up. As they were exiting the car, defendant grabbed one of two coats on the back seat and put it on. One officer searched Frank. When he pulled Frank’s pants open a plastic bag fell out. Frank shoved the police officer and ran. The police then searched the other three. Ronald never saw defendant attempt to walk away from the scene or the police officer grab defendant and tell him not to walk away.

On cross-examination, Ronald testified that he has been defendant’s friend for 12 or 13 years. Ronald previously had been convicted of two felonies and currently was serving a sentence at Weston Illinois Correctional Center. Mario also was in prison. Frank ran from the police without a coat.

Defendant testified that on December 3, 1988, as he left his girlfriend’s house, he saw Frank starting his car in a parking lot. Defendant put his coat on the back seat. After driving less than two minutes, defendant saw Ronald and Mario. Defendant told Frank to stop because they lived on his block. Ronald and Mario got in the car. Five minutes later, the police pulled the car over. When police asked defendant to get out, he was given police permission to put his jacket on, which he did. Defendant heard another officer utter “halt.” Frank was running down the street and pulling his pants up. Defendant was instructed to put his arms on the car, and an officer searched him. After a second search, the officer pulled a plastic bag out of the jacket defendant wore, which was not his, but Frank’s. Defendant told this to the police. He never tried to walk away.

During cross-examination, defendant testified that when Frank was running down the street he was not wearing a jacket. Defendant’s own jacket was still in the car.

Defendant rested.

In rebuttal, Officer Gyrion testified that after the three people were placed under arrest, he thoroughly searched the automobile. He was looking for some kind of weapon because he believed that the arrested persons had something to do with the shooting. No jacket was found.

The parties stipulated that on March 30, 1989, defendant was found guilty of the offense of possession of a stolen vehicle.

The State rested.

The jury found defendant guilty and he was sentenced as previously stated. Defendant appeals.

I

Defendant maintains that the stop and seizure of the car, defendant, and the evidence was without probable cause, was unconstitutional and should have been suppressed.

A

Defendant’s first contention, that the police did not have specific articulable facts required to stop the vehicle, is without support. As Officers Willingham and Gyrion approached the area of an alleged shooting, they observed a vehicle, without license plates, being driven at a fast rate of speed and coming from the area where the reported shooting occurred. A police officer may stop and temporarily detain an individual for the purpose of conducting a limited investigation if the officer is able to point to specific and articulable facts which, when taken together with reasonable inferences drawn therefrom, would justify the investigative intrusion. (People v. Martinez (1990), 206 Ill. App. 3d 813, 822, 564 N.E.2d 1271.) An objective standard is to be used in determining whether a stop is reasonable, namely, whether the facts available to the officer at the moment of the stop would warrant “a man of reasonable caution” to believe that the stop was appropriate. (Martinez, 206 Ill. App. 3d at 822.) Although a mere hunch is insufficient, a police officer’s stop may be proper under circumstances which would be insufficient to establish probable cause for an arrest warrant. (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 14 (now 725 ILCS 5/107-14 (West 1992)); Martinez, 206 Ill. App. 3d at 822.) Under the circumstances first noted, the police here had ample reason to stop the speeding vehicle, having no license plates, and coming from the area of the reported shooting.

B

Next, defendant contends that a pat-down search of any of the car’s occupants was unjustified. According to defendant, after the vehicle was pulled over, an officer searched him twice.

The fact that an officer has reason to stop a citizen does not necessarily justify the further intrusion of a search for weapons. (People v. Smithers (1980), 83 Ill. 2d 430, 415 N.E.2d 327.) The officer may conduct a pat-down search only if he has reason to believe that he is dealing with an armed and dangerous individual. The officer needs only the reasonable belief that either his safety or that of others is in danger. (Ill. Rev. Stat. 1989, ch. 38, par. 108 — 1.01 (now 725 ILCS 5/108-1.01 (West 1992)); Smithers, 83 Ill. 2d 430, 415 N.E.2d 327.) Although defendant insists that there was no evidence of danger and, therefore, no right to conduct a pat-down search, the circumstances which led police to stop the car, namely, a speeding vehicle, without license plates, coming from an area in which a reported shooting took place, were sufficient to justify a pat-down search for weapons of the vehicle’s occupants.

C

Defendant urges that even where the initial stop is valid and where there is reasonable suspicion that the subject is armed and dangerous so the pat-down is justifiable, removal of the clear plastic bag from defendant’s pocket still required the officer to have reasonable grounds to suspect the bag was a weapon.

Officer Willingham testified that he observed defendant bend forward after the vehicle was stopped and saw him place something in his right pocket as he emerged from the car. He testified further that he saw a large, clear plastic bag protruding from defendant’s right pocket and noted that the bag contained a white substance and money, the substance later having been identified as cocaine. Police officers "with prior justification to stop a vehicle and conduct a pat: down search of its occupants, as here, may seize evidence in plain view, such as Willingham saw protruding from defendant’s pocket, beyond the scope of the initial search. People v. Edwards (1991), 144 Ill. 2d 108, 579 N.E.2d 336; People v. House (1986), 141 Ill. App. 3d 298, 490 N.E.2d 212; People v. Gunsaullus (1979), 72 Ill. App. 3d 440, 391 N.E.2d 142.

From the foregoing facts, defendant’s further assertion that the stop, seizure and search violated his constitutional rights as a mere pretext to investigate him and the other occupants of the car because they were African-Americans approaching a white neighborhood is groundless.

II

Defendant contends that he was convicted in violation of his constitutional rights to remain silent and to a fair trial when the jury was improperly allowed to consider against him his silence upon arrest.

During cross-examination of Officer Willingham, defense counsel elicited the following:

“Q. Now did Mr. Peterson tell you that those drugs were not his?
A. No, sir.
Q. Never said anything?
A. No, sir.
Q. Just stood there?
A. Yes, sir.”

On redirect examination the prosecution pursued the same line of questioning:

“Q. And counsel just asked you about whether or not the [defendant said anything about the drugs not belonging to him, and you said no. Is that right?
A. Yes, Ma’am.
Q. Did he say anything to you about the jacket not belonging to him?
A. No, Ma’am.
Q. He didn’t say anything at all. Is that right?
A. No, Ma’am.
Q. I’m not sure that’s clear. Did he say anything to you at all?
A. [Response not audible.]
Q. Once you found the bag of drugs did [defendant] say anything to you at all regarding the drugs or the jacket?
A. Not that I recall.”

Defendant avers that the officer’s testimony improperly and inevitably invited the jury to infer that defendant’s testimony, which disclaimed ownership of the jacket and drugs, was a recent fabrication.

The United States Supreme Court in Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (Doyle), upon which defendant relies, held that prosecutorial questions and remarks concerning post-arrest silence generally are improper. (See People v. Pegram (1988), 124 Ill. 2d 166, 529 N.E.2d 506.) Defendant maintains defense counsel’s initial evocation of the officer’s statements does not operate as a license to allow the State then to inquire as to defendant’s silence (Pegram, 124 Ill. 2d at 176), and the State’s elicitation of the testimony was plain error and not harmless beyond a reasonable doubt. See Pegram, 124 Ill. 2d at 176.

The record demonstrates, however, that defense attorney’s opening statement, and subsequent questioning of Officer Willingham about defendant’s statements at the time of arrest, invited prosecutorial inquiry, particularly with respect to defense counsel’s statement that the jacket did not belong to defendant and his cross-examination questioning involving the period of time at issue. Defendant cannot complain about the redirect examination. See People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44; see also Pegram, 124 Ill. 2d 166, 529 N.E.2d 506.

Further, defendant testified he told police that the packets of powder taken out of the jacket he was wearing were Frank’s because it was Frank’s jacket. Based upon this statement, the State maintains that the testimony regarding defendant’s silence was properly elicited to show defendant never made the statement. (People v. Rehbein (1978), 74 Ill. 2d 435, 386 N.E.2d 39.) Defendant’s trial testimony was inconsistent with statements police testified were made to them; the prosecution was entitled to impeach defendant’s trial testimony by noting his failure to give similar statements to the police as those to which he testified. (People v. Ridley (1990), 199 Ill. App. 3d 487, 557 N.E.2d 378.) Doyle does not preclude examination of prior inconsistent statements. (Anderson v. Charles (1980), 447 U.S. 404, 408, 65 L. Ed. 2d 222, 226, 100 S. Ct. 2180, 2182; People v. Adams (1981), 102 Ill. App. 3d 1129, 1132, 430 N.E.2d 267.) There was no Doyle violation here.

III

Defendant asserts that prejudicial prosecutorial argument deprived him of a fair trial in violation of due process of law by comparing the “war on drugs” to the war on Iraq and inviting the jury to speculate as to distribution of drugs to children.

In closing argument, the prosecutor mentioned the war against Iraq in introduction to the war on drugs. In rebuttal, the State implied that convicting defendant would be a step against the war on drugs. Additionally, the State referred to what was reported through the media. Defendant maintains that these comments improperly invited the jury to convict him on the basis of patriotism and because of what it saw on television. Defendant adds that these comments were especially damaging in that the argument was made within weeks of the conclusion of the Iraqi war. Defendant also points to the State’s assertion in closing argument:

“[T]hese 36 packets are 36 different possibilities of where this could end up. Is it going to go to a kid in a school yard? Is it going to go to somebody who's going to kill somebody over drugs? It happens every day.”

Defendant maintains that these comments invite the jury to draw specific prejudicial conclusions about defendant based upon material outside of the record, which had the cumulative impact of depriving him of a fair trial.

The State asserts that the issue was waived because no objection was made at trial and, further, the argument was not so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten the deterioration of the judicial process. (People v. Owens (1984), 102 Ill. 2d 88, 464 N.E.2d 261.) The State also avers that the evidence was not so closely balanced that a possibility existed that an innocent person was wrongly convicted. (People v. Herrett (1990), 137 Ill. 2d 195, 209, 561 N.E.2d 1.) We agree.

The prosecutor’s remarks relating to the war on drugs were permissive comments on the evils of crime and fearless administration of justice and, therefore, did not constitute prosecutorial misconduct. (People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357.) The remarks did not compare defendant to the parties in the Iraq conflict. In fact, defense counsel aptly responded:

“I believe that in every war as in the war in Iraq there are civilian casualties, people who get caught up in the cross fire. Just as in the war in Iraq, there are civilian casualties in the war on drugs. Mr. Keith Peterson is one of those casualties. He’s not a foot [soldier]. Mr. Peterson is a casualty. But you Ladies and Gentlemen have the opportunity right now not to make him a prisoner of war, and I ask you please to do that.”

The State urged the jury to examine and use the evidence presented to determine defendant’s guilt. The remarks were not made to inflame the passions of the jury and did not prejudice defendant.

A prosecutor is allowed wide latitude in closing arguments. (People v. Clay (1984), 124 Ill. App. 3d 140, 463 N.E.2d 929.) The prosecution properly may dwell upon the evil results of crime and urge the fearless administration of the law. (Harris, 129 Ill. 2d at 159; Clay, 124 Ill. App. 3d 140, 463 N.E.2d 929.) Prosecutorial comment on the evidence and the drawing of reasonable inferences is proper. Clay, 124 Ill. App. 3d at 149.

The prosecutorial comments here did not result in substantial prejudice or affect the outcome of the trial. (People v. Rainone (1988), 176 Ill. App. 3d 35, 41, 530 N.E.2d 1026.) The prosecutor did not mistake evidence or implicate other specific rights of defendant in this case. The circuit judge told the jury that closing arguments were not evidence and written instructions to that effect were given to the jury when it began its deliberations. We find no error.

IV

Defendant maintains he was denied effective assistance of counsel by reason of any and all of the following alleged unreasonable acts and omissions by his trial counsel: (a) failure to suppress the fruits of the aforesaid stop, search and seizure; (b) elicitation of the offending testimony in the alleged Doyle violation; (c) failure to object to the offending prosecutorial argument, which is the basis of point III; (d) failure to impeach, by omission, testimony of a police officer that the search of defendant followed the driver’s flight from the car, where there is no reference in the police reports to flight of any person; and (e) failure to call copassenger Mario Lee to testify on defendant’s behalf.

A

To prevail on an ineffective assistance of counsel claim, defendant must show both that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that the result would have been different had there not been ineffective assistance. (Strickland v. Washington (1984), 466 U.S. 668, 688, 694, 80 L. Ed. 2d 674, 693-94, 697-98, 104 S. Ct. 2052, 2064, 2068 (Strickland); People v. Eddmonds (1991), 143 Ill. 2d 501, 510-11, 578 N.E.2d 952;.People v. Bell (1987), 152 Ill. App. 3d 1007, 505 N.E.2d 365.) Where defendant contends, as here, that counsel’s failure to articulate a fourth amendment claim was ineffective assistance, defendant must show that such claim is meritorious and that the verdict would have been different absent the evidence that should have been excluded. Kimmelman v. Morrison (1986), 477 U.S. 365, 374-75, 91 L. Ed. 2d 305, 318-19, 106 S. Ct. 2574, 2582.

The State claims that defendant has waived his right to challenge the stop and seizure of evidence based on fourth amendment grounds because he failed to argue the issue before the circuit court. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; see People v. Moore (1969), 43 Ill. 2d 102, 251 N.E.2d 181.) Alternatively, the State maintains that defendant’s failure to argue the reasons now presented render it impossible to determine the validity of defendant’s claims based on the present state of the record. (See People v. Calderon (1981), 101 Ill. App. 3d 469, 428 N.E.2d 571 (Calderon).) The record reveals, however, that a motion to quash arrest and suppress evidence was filed, but not argued, one year and four months prior to trial.

Defendant responds that there was no knowing waiver; the motion was sufficiently preserved because it was filed before trial, presented in a post-trial motion and argued in the motion for a new trial. He adds that this claim is distinguishable from Calderon because here counsel asked for an evidentiary hearing in the post-trial motion.

Whether or not a motion to suppress should be filed in a criminal case is a matter of trial tactics and has little bearing on competency of counsel. (People v. Atkins (1987), 161 Ill. App. 3d 600, 609, 515 N.E.2d 272; People v. Johnson (1986), 143 Ill. App. 3d 34, 492 N.E.2d 574.) A reviewing court will not extend its inquiry into areas involving the exercise of judgment, discretion, trial tactics or strategy. (Atkins, 161 Ill. App. 3d at 609.) The decision of whether or not to file a motion to suppress is best left to trial counsel’s discretion. (People v. Bryant (1989), 128 Ill. 2d 448, 458, 539 N.E.2d 1221.) To prevail on a claim that his trial counsel was ineffective for failing to file a motion.to quash or suppress, defendant must show that the motion would have been granted and that the trial outcome would have been different if the evidence had been suppressed. People v. Bennett (1991), 222 Ill. App. 3d 188, 201, 582 N.E.2d l370; People v. Mendez (1991), 221 Ill. App. 3d 868, 873, 582 N.E.2d 1265.

Defendant argues that the police had no reason to conduct the “investigatory stop” and subsequent “protective frisk” of defendant and, therefore, their actions were in violation of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. Defendant further contends that under the exclusionary rule, the evidence recovered as a result of" the alleged improper conduct should have been suppressed as a fruit of his illegal seizure. We find, however, that the stop of the vehicle in which defendant was a passenger was a valid traffic stop, particularly in view of the reported shooting and the direction of the vehicle’s travel away from the shooting situs. (See People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605.) After the stop, the police observed defendant in possession of money and what proved to be cocaine protruding from his pocket in “plain view.” The seized money and cocaine were therefore admissible and any motion to suppress on fourth amendment grounds would have been futile. There was no error.

B

Defendant next contends that he was denied effective assistance of counsel when his attorney elicited testimony from a witness on cross-examination pertaining to defendant’s failure to make exculpatory statements at the time of his arrest.

The defense argued from the outset of the trial that the jacket defendant was wearing at the time of his arrest did not belong to him. His theory of the case was that he had mistakenly donned the driver’s jacket after the vehicle had been stopped and had no knowledge that drugs were in the jacket. Defense counsel asserted in his opening statement that defendant had made statements to police at the time of his arrest that were both exculpatory and consistent with the defense theory. During cross-examination of Officer Willingham, the defense attempted to elicit these prior exculpatory statements from the officer as further proof and corroboration of defendant’s lack of knowledge; however, the officer denied that defendant made any such statements. Notwithstanding the officer’s testimony, the defense continued to pursue its theory through direct examination of both Ronald Lee and defendant. Testimony from Ronald Lee corroborated defendant’s claim that the coat did not belong to defendant. When defendant took the stand, he testified that he told the officers that the drugs and jacket belonged to the driver, who had fled the scene.

Cross-examination of Officer Willingham sought to elicit testimony corroborating defendant’s testimony. The questions clearly were intended to aid defense strategy. If the defense had not made such an inquiry, given its theory, counsel’s conduct might have been deficient. Defendant here has not overcome the burden of showing actual incompetence and prejudice. (See People v. Puente (1984), 125 Ill. App. 3d 152, 465 N.E.2d 682.) Defense inquiry did not so undermine the proper functioning of the adversarial process that the trial failed to produce a just result. (See Strickland v. Washington (1984), 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2063-64.) Defendant was not denied effective assistance of counsel in this regard.

C

Defendant insists that he was denied effective assistance of counsel when his attorney failed to object to allegedly improper remarks made by the prosecutor during closing argument and rebuttal. We have already addressed these remarks under point III of this opinion.

Even were we to assume, arguendo, that defense counsel’s performance in this regard was deficient, it did not undermine the outcome of the trial when analyzed under the second prong of Strickland (466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052). Whether a prosecutor’s comments made during closing argument constitute prejudicial error depends upon whether the jury would have reached a contrary verdict had the improper comments not been made. (People v. Rainone (1988), 176 Ill. App. 3d 35, 41, 530 N.E.2d 1026.) A conviction will not be disturbed on review unless the remarks constitute a material factor in the conviction or result in substantial prejudice of defendant. A reviewing court looks to the content of the language used, its relationship to the evidence, and the effect of the argument on the rights of the accused to a fair and impartial trial. People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.

The prosecutor’s remarks in the case sub judice were general comments urging the jury to comply with the fearless administration of justice. Given the substantial evidence of defendant’s guilt, there was no possibility that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

D

Lastly, defendant argues that he was denied effective assistance of counsel when his attorney failed to impeach the testimony of Officer Gyrion during his cross-examination as to an omission he made in a police report prepared at the time of defendant’s arrest and failed to call Mario Lee as a defense witness.

In this regard, defendant claims first that the failure to impeach Officer Gyrion on his omission from the police report that the driver of the vehicle fled the scene constituted ineffective assistance. Gyrion’s failure to include the driver’s flight in a police report was completely irrelevant to defendant’s guilt or innocence, however; any attempted impeachment relating to this fact would have added nothing to defendant’s case. Further, testimony elicited from both Ronald Lee and defendant himself corroborated Gyrion’s account, since both testified that the driver of the vehicle fled the scene. Counsel’s declination to attempt impeachment of Gyrion by reason of his omission was a proper trial tactic and cannot be judged unreasonable by the objective standard of effective assistance of counsel.

Defendant next argues that his attorney’s failure to call Mario Lee as a witness was ineffective assistance, because Mario could have corroborated defendant’s trial testimony. It must be noted that Ronald Lee, Mario’s brother, testified that Mario was incarcerated in prison at the time of the trial. Defense counsel’s reluctance to call Mario as a witness was understandable. Also, Mario’s past convictions properly could have been admitted for purposes of impeachment. Had he been called as a witness, it is improbable that Mario’s testimony would have influenced the outcome of the trial. Whether a witness should or should not be called is a tactical and strategic decision in which defense counsel is given wide latitude. (People v. Flores (1989), 128 Ill. 2d 66, 85-86, 538 N.E.2d 481; see also Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) The absence of Mario under the foregoing circumstances comes well within defense counsel’s permissible latitude here.

For the reasons set forth above, we find no reversible error and affirm.

Affirmed.

McCORMICK, P.J., and SCARIANO, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCORMICK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER MURPHY, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 92—1219
    Opinion filed June 1, 1993.

      Chapman & Cutler, of Chicago (Michael W. Ford, George F. Venci, Jr., and Michele L. Niermann, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Donald T. Lyman, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court:

Defendant, Peter Murphy, pleaded guilty to first degree murder and later moved to withdraw his plea. Following an evidentiary hearing, the trial court denied the motion because defendant failed to prove that he had received ineffective assistance of counsel or that he had defenses worthy of consideration. Defendant appeals.

We affirm because the trial court’s findings are not contrary to the manifest weight of the evidence and defendant has not shown that the trial court abused its discretion by denying the motion to withdraw the guilty plea.

On November 1, 1990, police arrested defendant and charged him with the murder of Kimberly Presley. On August 21, 1991, following four months of negotiations between the assistant public defender representing defendant, the assistant State’s Attorney and the trial court, defendant agreed to plead guilty to first degree murder in exchange for a sentence of 28 years’ imprisonment.

In open court, before defendant pleaded guilty, the trial court advised defendant that the court could fine him up to $10,000 and sentence him to between 20 and 60 years’ imprisonment for murder. Defendant said he understood. The court said:

“You have a right to a trial by jury ***.
You have the right to be confronted by all the witnesses against you. You have the right to present your own personal evidence in defense of these charges, and you further have the right to remain silent and require the State [to] prove their case against you beyond all reasonable doubt.
Do you understand by pleading guilty today, Peter Murphy, you are giving up all these rights and admitting commission of the crime?
A. Yes.”

Defendant also stated that he signed the jury waiver voluntarily, and neither police, assistant State’s Attorneys, defense attorneys, nor anyone else had made any promises or threats, apart from the plea bargain on the record, to force him to plead guilty. The assistant public defender stated that he had sufficient time to discuss the guilty plea with defendant.

Defendant, acting through the assistant public defender, stipulated that if called to testify, Andre Johnson would state that on September 8, 1990, Johnson, Presley and defendant went for a walk along some railroad tracks. Defendant had a hammer and wrenches because he had been fixing a car. Defendant and Presley argued. As a train went past, defendant hit the back of Presley’s head with a hammer or wrench. When Presley stumbled, defendant shoved her against the side of the moving train. Defendant ran home and Johnson followed him.

Defendant also stipulated that, if called, the medical examiner would testify that Presley “died of cranial cerebral injuries due to blunt force,” and a police officer would testify that defendant admitted that he Hit Presley “one time with his fist and *** she fell into the side of a moving train.”

The court asked defendant:

“Are those facts basically true and correct?
A. They ain’t true.
THE COURT: Fine. Do you want to add any facts, sir?
A. Yes. I didn’t have no hammer. I didn’t have no wrenches, and I wasn’t working on no cars.
* * *
THE COURT: I understand that, but "with the facts that were presented to the Court and what you are saying now, if you desire I’m still going forward with your plea of guilty to the charge of first degree murder. Is that what you want to do?
A. Yes.
THE COURT: Those facts that were reported to me by the prosecutor and the facts concerning yourself are sufficient under the law for me to *** sentence you. Is that *** what you want me to do ***?
A. Um-humm.
THE COURT: You are saying yes?
A. Yes.”

To clarify the reasons supporting the agreed sentence of 28 years’ imprisonment, the trial court asked the attorneys to state their arguments regarding sentencing on the record. The State asked for a sentence of 50 years’ imprisonment, and defense asked for a more lenient sentence:

“[D]efendant is 27 years old, and we ask your Honor to look at his lack of any substantial *** criminal history. He has one possession of stolen motor vehicle back in 1982. ***
We would like the Court to understand there was some drinking involved before this occurred.
THE COURT: Some of the parties had told me that they were drinking involving all the parties.
[Defense attorney]: That’s correct, the victim as well as the defendant as well as the "witness. *** [T]here’s a question as to whether or not the victim was pushed into a train or was pushed by a train and a post that was sticking out from the train ***. It wasn’t he pushed her under a train.
*** [A] rail sticking out came by and hit the victim in the head. *** [I]f this piece wasn’t sticking out perhaps she would be here today.”

The court then entered the agreed sentence of 28 years’ imprisonment.

With the assistance of a new attorney, defendant subsequently moved to withdraw his guilty plea. Defendant stated in his affidavit in support of the motion:

“I believed, and was not informed to the contrary by my counsel, that even after a guilty plea, I would be entitled to a trial by jury, in which any witness against me would be cross-examined and I could summon witnesses of my own.
*** [M]y counsel told me that if I did not plead guilty *** I would be imprisoned for the rest of my natural life.”

Defendant argued that the court should allow him to withdraw his plea because (1) he misunderstood the law; (2) his assistant public defender misrepresented the consequences of refusing to plead guilty; (3) he received ineffective assistance of counsel; and (4) he had defenses worthy of consideration.

On March 6, 1992, the trial court held a hearing on the motion to withdraw the guilty plea. After counsel for the State and for defense argued their positions, the trial court said that it found the affidavit incredible. He said that the allegation that defendant thought he could present witnesses for a trial by jury after pleading guilty was “a false statement by this defendant. *** He is above average in intelligence. He has had numerous meetings with the assistant public defender *** who is highly trained and highly skilled.” The trial court also found incredible defendant’s statement that he thought he would be sentenced to natural life in prison if he did not plead guilty.

Defendant then presented his brother, Gary Murphy, as a witness. Gary testified that defendant dropped out of school in the ninth grade. Defendant asked Gary to read forms for him and help him fill them out. On defendant’s job applications, Gary filled in everything except defendant’s name and address; defendant was unemployed “because of his illiteracy.”

Defendant then told the court that the assistant public defender talked with him only once, when he was first arrested. Thereafter, each time he saw the assistant public defender, the assistant public defender simply told him that he was getting a continuance. The trial court said he “kn[e]w that after *** negotiations [the assistant public defender] repeatedly went and talked to” defendant. The trial court denied the motion to vacate the guilty plea.

Defendant asks this court to reverse the trial court’s decision denying his motion to withdraw his guilty plea. Defendant does not argue in this appeal that the trial court erred by accepting the plea. However, if the trial court properly accepts a guilty plea, it should not lightly allow defendant to withdraw the plea.

Before the trial court accepts a guilty plea, it must follow the procedure established in Supreme Court Rule 402 (134 Ill. 2d R. 402), which is designed to ensure that defendant’s guilty plea is made voluntarily and with full understanding of its consequences. The trial court must inform defendant of the nature of the charge and the minimum and maximum sentences prescribed by law. (134 Ill. 2d R. 402(a).) The court must remind defendant of his right to confront witnesses in a trial by jury and that by pleading guilty he waives that right. (134 Ill. 2d R. 402(a).) The court must determine that the plea is not the result of threats or promises apart from the plea agreement stated on the record in open court. (134 Ill. 2d R. 402(b).) Finally, the court must determine that there is a factual basis for the plea. 134 Ill. 2d R. 402(c).

The trial court here fully complied with Rule 402. Defendant’s disagreement with some of the testimony which he stipulated witnesses would give does not undercut the factual basis for the plea. The trial court can accept a guilty plea even from a defendant who protests his innocence, “if the record reflects a factual basis from which a jury could find the defendant guilty.” People v. Barker (1980), 83 Ill. 2d 319, 333, 415 N.E.2d 404.

Here, defendant did not protest his innocence. He disputed testimony that he hit the victim with a hammer or wrench; he effectively acquiesced to testimony that he hit the victim and he shoved her against a moving train. As the trial court pointed out, even if it accepted defendant’s version of the facts, it could accept his guilty plea because his acts of hitting the victim and shoving her against the train showed an intent to do great bodily harm and that is sufficient to support a finding of first degree murder. After defendant raised his objection to the stipulated testimony, the court clarified, through further questioning of defendant, that defendant still wished to plead guilty. Since the court fully complied with Rule 402, and defendant persisted in his guilty plea, the trial court properly accepted the plea. See Barker, 83 Ill. 2d at 333.

A defendant who has pleaded guilty has a right to withdraw that plea only in limited circumstances.

“The decision whether to allow a defendant to withdraw a plea of guilty is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. [Citation.] Permission to withdraw a plea is granted not as a matter of right, but instead to correct a manifest injustice based on the facts of the case. [Citation.] Defendant has the burden of proving that the ends of justice require the withdrawal of the plea. [Citation.] To attain a reversal of a trial court’s decision denying a motion to withdraw a guilty plea, a defendant must normally establish that (1) the guilty plea was attributable to a misapprehension of law or fact on his part; (2) he has a defense to the charge(s) worthy of consideration; or (3) there is doubt as to his guilt, and the ends of justice would be better served by trial of the cause.” People v. Christensen (1990), 197 Ill. App. 3d 807, 811-12, 555 N.E.2d 422.

Defendant argues first that he misunderstood the consequences of the plea and therefore it was involuntary. He stated in his affidavit that he believed that after he pleaded guilty, he would have a jury trial at which he could cross-examine witnesses and present his own witnesses. He further stated that his counsel did not tell him that by pleading guilty he waived the right to trial.

“To vacate a plea based on a misapprehension of law ***, the defendant must establish that [his] mistaken beliefs or impressions were reasonably justified under all the circumstances when those circumstances are judged by an objective standard rather than by the defendant’s own subjective impression. *** Defendant presented no evidence other than [his] subjective perception that this misapprehension was reasonable ***. The trial court was not required to accept defendant’s testimony at the motion to withdraw [his] guilty plea but could instead regard it as at best improbable and at worst false.” Christensen, 197 Ill. App. 3d at 812-13.

The trial court here found defendant’s affidavit false and on that basis the court properly rejected the first ground advanced for withdrawal of the plea. Moreover, even if the trial court had accepted the affidavit as true, the court should have rejected the motion because the affidavit does not state grounds on which the court could find defendant’s belief reasonably justified. Defendant’s attorney never told defendant that he would have a trial if he pleaded guilty, and the court clearly, on the record, informed defendant that he would not receive a trial if he pleaded guilty. The appellate court has held that where a defendant’s misunderstanding of the law was not induced by counsel or the court, his guilty plea could stand. (People v. Gasper (1988), 167 Ill. App. 3d 218, 221, 521 N.E.2d 170.) The trial court did not abuse its discretion by rejecting the first proposed ground for allowing defendant to withdraw his guilty plea.

Defendant next contends that he should have been allowed to withdraw his guilty plea because he made the plea due to his attorney’s misrepresentation that defendant would spend his natural life in prison if he did not plead guilty. In People v. Munday (1987), 153 Ill. App. 3d 910, 506 N.E.2d 445, the defendant pleaded guilty and then moved to withdraw his plea, supporting the motion with affidavits from himself and his attorneys, stating that the attorneys told the defendant that the State would recommend a sentence of 20 years’ imprisonment and the court would 'probably sentence him to 10 to 12 years’ imprisonment if he pleaded guilty. The State actually recommended a much higher sentence, and the court sentenced the defendant to 30 years’ imprisonment. The appellate court held:

“The affidavits of defendant and his attorneys relating to the claimed out-of-court representations *** could not be[] negated by the record, and an evidentiary hearing is therefore required to determine the truth or falsity of defendant’s allegations.” Munday, 153 Ill. App. 3d at 915.

Defendant contends that the trial court here “summarily denied” his motion, and he asks this court to remand so that the trial court can conduct an evidentiary hearing. The trial court has already held an evidentiary hearing at which defendant presented a witness and further told the court about his contacts with the assistant public defender. The trial court did not in any way restrict defendant’s ability to present witnesses or other evidence in support of his motion to withdraw his plea. The trial court did not believe defendant’s evidence that defendant’s attorney told him that he would be sentenced to natural life in prison if he did not plead guilty; the trial court believed instead that defendant understood the trial court when the trial court informed him that he could be sentenced to anywhere between 20 and 60 years’ imprisonment for the offense charged. For this proceeding, as with most criminal proceedings, “the determination of the credibility of the witnesses rests with the trier of fact, and the reviewing court will not substitute its judgment for that of the trier of fact unless it is against the manifest weight of the evidence.” People v. Ross (1989), 191 Ill. App. 3d 1046, 1054, 548 N.E.2d 527.

In People v. Petrovic (1986), 146 Ill. App. 3d 857, 497 N.E.2d 199, the defendant pleaded guilty then moved to withdraw his plea. The trial court denied the motion after holding an evidentiary hearing. The appellate court, in affirming, said:

“The only evidence offered by defendant, however, was his own testimony that his former lawyer had made such representations to defendant. For some reason, defendant failed to call as a witness *** his former attorney ***. In denying defendant’s motion, the trial court noted it based the decision on the credibility of the witness.
*** We conclude defendant failed to sustain his burden of proof *** and the trial court correctly denied the motion to withdraw the plea of guilty.” (Petrovic, 146 Ill. App. 3d at 861-62.)

The appellate court also rejected the defendant’s request for a further evidentiary hearing:

“[Defendant had an opportunity to present any evidence at a full hearing of the issue, and is not entitled to do so again in another evidentiary hearing.” Petrovic, 146 Ill. App. 3d at 862.

Similarly, in this case defendant presented evidence in support of his motion to withdraw his plea and the trial court rejected it as incredible. The trial court, as trier of fact, properly weighed the credibility of the evidence before ruling on the motion. (See Munday, 153 Ill. App. 3d at 915.) The trial court found that defendant failed to sustain his burden of proof on the motion to withdraw his plea. He is not entitled to a second opportunity to present witnesses at a second evidentiary hearing. Since we cannot say that the trial court’s evaluation of credibility and findings of fact are contrary to the manifest weight of the evidence, we find that the trial court did not abuse its discretion by rejecting the second proffered basis for defendant’s motion to withdraw his plea.

Defendant argues that the trial court should have allowed him to withdraw his plea because he did not receive effective assistance of counsel. Defendant relies again on his assertions that his attorney told him he would be sentenced to natural life in prison if he did not plead guilty, and his attorney failed to tell him that he would waive the right to trial if he pleaded guilty. The trial court, following hearing, found both allegations incredible, and thus it held that defendant had not met his burden of proving that the ends of justice required the court to allow defendant to withdraw his plea. Since we cannot say that the trial court’s factual findings, dependent upon credibility, are contrary to the manifest weight of the evidence, we have no basis for finding defense counsel’s conduct unprofessional, nor can we say that counsel’s conduct prejudiced defendant. (See People v. Brumas (1990), 204 Ill. App. 3d 542, 546-47, 561 N.E.2d 1366.) Thus, we cannot find that the trial court abused its discretion by rejecting the alleged ineffective assistance of counsel as a basis for defendant’s motion to withdraw his plea.

Finally, defendant contends that the trial court should have allowed him to withdraw his guilty plea because he had defenses available which were worthy of consideration. He claims that he did not possess the requisite mental state for first degree murder. At the sentencing hearing, defense counsel stated in mitigation that all three persons present when defendant hit the victim had been drinking, and counsel pointed out that defendant did not push the victim under a train. Defense counsel also said that the fatal blow may have been struck by a piece of rail sticking out from the train. While these allegations may present factors the court could consider as mitigating, counsel’s statements, even if true, do not show that defendant had a defense to the charge of murder.

Defendant’s acts of hitting the victim and shoving her against a moving train are sufficient to show an intent to do great bodily harm. Even if defendant did not use a hammer and the blow he struck was not the fatal blow, defendant left the victim lying by the track where she may later have been struck by a piece of rail sticking out from the train. The later blow does not break the causal connection between defendant’s acts and the victim’s death.

“There are often cases in which the precise manner of death will not be foreseeable to the defendant ***. This does not relieve the defendant of responsibility.” (People v. Brackett (1987), 117 Ill. 2d 170, 180, 510 N.E.2d 877.) The defendant is guilty of murder if he knows that his acts create a strong probability of great bodily harm and that those acts are “a contributory cause and *** death did not result from a cause unconnected with the defendant.” (People v. Osborne (1989), 183 Ill. App. 3d 5, 9, 538 N.E.2d 822.) The facts which defendant and his counsel did not dispute still leave defendant guilty of an act which caused the victim’s death, and the circumstances indicate that defendant knew that his acts created a strong probability of great bodily harm.

Neither is counsel’s representation that defendant was drinking sufficient to show that defendant had a viable defense to the murder charge.

“In order for defendant to maintain voluntary intoxication as an affirmative defense, the voluntary intoxication must be so extreme as to suspend all of defendant’s powers of reason.” (People v. Kyse (1991), 220 Ill. App. 3d 971, 974, 581 N.E.2d 285.)

Defendant here failed to present any evidence which would give rise to an inference that he did not know what he was doing when he struck the victim. Therefore, he failed to meet his burden of proving that he had a defense worthy of consideration.

Since defendant failed to meet his burden of proof at the evidentiary hearing on all bases he advanced in support of his motion, the trial court did not abuse its discretion when it denied the motion. Accordingly, we affirm the trial court’s decision denying defendant’s motion to withdraw his guilty plea.

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


author: JUSTICE O’CONNOR

text:
    STEPHANIE HARRIS, Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 1 — 91—3434
    Opinion filed February 22, 1993.

      Cooney & Conway, of Chicago (James E. Ocasek, of counsel), for appellant.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Robert J. Franco, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Stephanie Harris sustained personal injuries on March 2, 1984, after being struck by an automobile driven by Dorothy Williams. Plaintiff’s injuries occurred as she was about to reenter a parked vehicle owned by Universal Recording Corporation (Universal). Plaintiff had been a guest and passenger of a Universal employee.

Plaintiff filed a claim for underinsured motorists (UIM) benefits with Universal’s insurer, defendant St. Paul Fire & Marine Insurance Company, which denied her claim. Plaintiff thereafter filed a one-count breach of contract action against defendant to obtain those benefits. Plaintiff appeals from a final judgment of the circuit court of Cook County which found her to be covered under defendant’s policy; that defendant’s UIM limits were implied in the amount of $30,000; and that defendant was entitled to a $15,000 setoff for plaintiff’s receipt of that sum from Williams’ liability insurer. Defendant has not cross-appealed from any of these findings. We affirm.

Because defendant has not appealed the circuit’s court’s finding that plaintiff was an insured under its policy, we take this fact as established. Consequently, we need not focus on how the accident occurred, but rather, the procedural development of this case.

Following the accident, plaintiff made claim against Williams’ insurer, which paid plaintiff its full $15,000 liability limit to plaintiff. Plaintiff also notified defendant that she was making a claim under Universal’s policy for “medical payments” and UIM benefits. Defendant subsequently tendered $1,000 to plaintiff under the policy’s medical payments coverage. On August 13, 1985, plaintiff notified defendant of her intent to accept Williams’ insurer’s tender of $15,000. Defendant did not respond and refused to tender a copy of Universal’s policy in effect at the time of the accident. On December 26, 1985, plaintiff filed the instant action.

Plaintiff’s breach of contract claim alleges that she had been an occupant of a vehicle which defendant insured. At the time she was struck by Williams, plaintiff was about to enter the insured vehicle, which qualified her to be an “insured” under defendant’s policy. Plaintiff alleged that she received $15,000 in benefits from Williams’ insurer and that defendant has refused to pay her any UIM benefits. Plaintiff asserted that defendant’s refusal amounted to a breach of contract.

Significantly, plaintiff’s complaint contains no allegations that defendant failed to offer Universal increased uninsured (UM) and/or UIM benefits, or that the policy in question should be reformed to include UM/UIM benefits in the amount of the policy’s bodily injury/liability limits, which are $500,000. Plaintiff has never sought to amend her complaint.

Defendant’s amended answer admitted issuing a policy to Universal, but denied all material allegations of plaintiff’s complaint. Defendant’s affirmative defenses included one seeking to limit its exposure to the $30,000 UIM coverage less a setoff of $15,000.

Defendant subsequently moved for summary judgment. In this motion, defendant argued it was entitled .to judgment as a matter of law because plaintiff could not maintain a breach of contract action against defendant absent contractual privity. Defendant alternatively argued that its liability under the UIM coverage was limited to the $30,000 UIM coverage limit, less a $15,000 setoff.

At the summary judgment hearing, the circuit court dismissed plaintiff’s complaint sua sponte without prejudice on the basis that it was premature in that plaintiff had failed to seek arbitration of her UIM claim.

Plaintiff moved for a rehearing. Upon rehearing September 20, 1991, the court ruled orally that it was vacating its prior ruling, that plaintiff did not have to proceed to arbitration to preserve her rights; that plaintiff failed to allege that a proper tender of UM coverage had not been made; that UIM coverage was to be implied in the same amount as UM coverage, namely $30,000; that plaintiff was a covered party; and that defendant was entitled to a $15,000 setoff. The court’s subsequent final order included all of its oral rulings except its arbitration finding and plaintiff’s failure to allege an improper offer.

Plaintiff’s notice of appeal seeks reversal of the circuit court's judgment that defendant’s UIM exposure was $30,000. Plaintiff also seeks this court “to find that St. Paul failed to properly offer higher limits of coverage and hold the- applicable limit to equal the limit of bodily injury coverage, or alternatively to remand the cause for trial on all issues.” Defendant has filed no cross-appeal.

This case presents itself in an unusual posture. Plaintiff filed a breach of contract action, yet she now asks this court to view it as one seeking declaratory relief and reformation of the policy based upon defendant’s alleged failure to offer higher limits of UM/UIM coverage to Universal. We are thus faced with the issue of whether plaintiff’s breach of contract theory of recovery encompasses a claim that defendant wrongfully failed to offer higher limits of UM and/or UIM benefits to Universal.

Only a generous judicial view of a breach of contract action will allow plaintiff to pursue, as part of that action, a claim that defendant failed to offer higher limits of UM and/or UIM benefits. The cases which have addressed these latter types of claims are declaratory relief actions seeking reformation of the policy to imply a higher level of UM and/or UIM coverage. These actions contain allegations of an improper offer of higher UM/UIM limits. (See Taruc v. State Farm Mutual Automobile Insurance Co. (1991), 218 Ill. App. 3d 51, 578 N.E.2d 134; Bernier v. Transamerica Insurance Co. (1991), 215 Ill. App. 3d 118, 574 N.E.2d 873; Orr v. Illinois Farmers Insurance Co. (1991), 210 Ill. App. 3d 1015, 569 N.E.2d 619; Rutter v. Horace Mann Insurance Co. (1989), 190 Ill. App. 3d 467, 545 N.E.2d 1381; Krska v. Allstate Insurance Co. (1987), 162 Ill. App. 3d 549, 515 N.E.2d 1304.) As noted, plaintiff’s complaint is silent on the matter of improper offers.

Admittedly, a breach of contract action predicated on the wrongful withholding of insurance benefits necessarily requires a court to ascertain the meaning of the insurance policy. To this extent, a breach of contract action overlaps with a declaratory judgment action. However, the breach of contract action allows the court only to interpret the language as written. A declaratory judgment action which seeks reformation of the policy based on an improper UM/UIM offer goes well beyond this by invoking a court’s equitable powers.

In this case, plaintiff should have amended her complaint once she discovered that defendant potentially failed to properly offer higher limits of UM and/or UIM coverages. Absent this amendment, plain-, tiff’s action is limited to her breach of contract count and the limited relief such an action triggers.

Nor do we believe that defendant’s conduct in this case somehow transformed this action into an “improper offer” case. Defendant’s third and fourth affirmative defenses requested the circuit court to ascertain the available amount of coverage. The third defense argued that the coverage limit was $30,000 with a $15,000 setoff, while the fourth defense argued that if coverage exceeded $30,000, then plaintiff was required to arbitrate her claim.

In defendant’s subsequent summary judgment motion, defendant argued it was entitled to judgment as a matter of law. In the supporting memorandum, defendant argued that it was entitled to judgment due to a lack of privity. Defendant made the following alternative argument: “St. Paul seeks this Court to adjudge and declare the rights, duties and obligations of the parties, construing the St. Paul Policy, and declaring the applicable policy limits for the claim submitted by Plaintiff.” Defendant did not raise the improper offer issue in any way in this memorandum.

Plaintiff’s response to defendant’s memorandum raised the issue of an improper offer. Plaintiff argued, as she does on appeal, that no offers of enhanced UM and/or UIM coverages were made at any time to Universal. Plaintiff accordingly asserted that defendant was not entitled to judgment in the amount of $15,000; thus, defendant’s summary judgment motion should be denied. Defendant’s reply asserted that the improper offer theory was a “red herring” not properly before the court.

We believe that, to the extent that defendant requested declaratory relief in its memorandum of law supporting its summary judgment motion, it did so only with respect to the policy limits and language as written. Defendant did not interject the improper offer issue, plaintiff did. Defendant replied that the improper offer issue was not properly before the court. Absent allegations within plaintiff’s complaint that proper offers of UM/UIM coverage were not made, the circuit court was not faced with such an issue. Plaintiff, in short, is bound by her complaint and the contract theory of recovery it asserts.

Plaintiff next asserts that summary judgment was improperly entered because the deposition testimony of Blanche Hughes, an underwriter with defendant, created a genuine issue of material fact on the issue of whether the UM/UIM endorsement in the record is in fact the UM/UIM endorsement which governed at the time of plaintiff’s accident. While the UM/UIM endorsement in the record bears the number 40136 and an edition date of July 1977, Hughes testified that this endorsement underwent revisions subsequent to its edition date in order to keep defendant’s UM/UIM coverage compatible with Illinois law. Further, these revisions occurred internally, not externally. Thus, although the insured’s policy showed endorsement number 40136 to be included, the insured’s UM/UIM coverage was actually governed by a different endorsement which the insured never received.

We do not believe summary judgment is inappropriate based on Hughes’ testimony. Two provisions of defendant’s UM/UIM coverage are critical to this appeal. The first is the limits of such coverage. The second is the existence of a setoff for the $15,000 which plaintiff received from Williams’ insurer. Regarding the former, plaintiff has introduced no evidence that the UM/UIM limits of Universal’s policy would have changed under these other endorsements. Thus, while the terms of the UM/UIM coverage might be different under these other endorsements, nothing in the record indicates that the limits would be other than the statutory minimum of $30,000.

Regarding the latter, the Illinois UIM statute makes a setoff mandatory. (See Ill. Rev. Stat. 1983, ch. 73, par. 755a — 2(3) (“The limits of liability for an insurer providing [UIM] coverages shall be the limits of such coveráge, less those amounts actually recovered ***”).) Statutory provisions applicable to contracts of insurance are deemed to form a part of such contract and must be construed in connection therewith; policy provisions in conflict with the statute are void. (American Family Mutual Insurance Co. v. Baaske (1991), 213 Ill. App. 3d 683, 572 N.E.2d 308.) Thus, even under the alleged different endorsements, defendant would be nevertheless entitled to a setoff. For these reasons, we do not believe that summary judgment was improperly granted based on the testimony of Blanche Hughes.

Plaintiff also raises the argument that endorsement No. 40136 does not provide UIM benefits and, thus, the endorsement is in violation of Illinois law. Consequently, Universal’s UIM limits are not $15,000/$30,000, but equal to the bodily injury limits of $500,000/ $500,000. Defendant responds that its endorsement provides UIM coverage as well as UM coverage. Further, its UIM language tracks the definition of “uninsured motor vehicle” within section 143a — 2(3) of the Insurance Code.

Endorsement No. 40136 provides in relevant part:

“Protection Against Uninsured Motorists Endorsement
* * *
What’s an uninsured vehicle
We’ll consider the following land motor vehicles or trailers to be uninsured vehicles.
Vehicles which at the time of an accident aren’t insured or bonded for bodily injury liability in at least the amounts legally required where your covered auto is registered.
Vehicles which at the time of an accident are insured or bonded for bodily injury liability. And the insurance or bonds are for at least the amounts legally required where your covered auto is registered — but less than the limit of your coverage under this endorsement [$30,000]. When this happens this endorsement is excess insurance. We’ll only pay a claim after all other liability insurance or bonds have been used up.”

Section 143a — 2(3) of the Illinois Insurance Code defines an “uninsured motor vehicle” as follows:

“For the purposes of this Act the term ‘underinsured motor vehicle’ means a motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death of the insured, as defined in the policy, and for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security required to be maintained under Illinois law applicable to the driver or to the person or organization legally responsible for such vehicle and applicable to the vehicle, is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident.” Ill. Rev. Stat. 1983, ch. 73, par. 755a — 2(3).

Plaintiff’s arguments are rejected. Endorsement No. 40136 substantially tracks the definition of “underinsured motor vehicle” within the Code. The statutory definition provides in short that an underinsured motor vehicle is one having applicable liability limits which are less than the UIM coverage limits under the insured’s policy. The endorsement in question provides substantially the same. Further, as previously noted, to the extent the endorsement omits statutory requirements or contains conflicting policy provisions, the policy will be read to conform to the statute. For these reasons, we find that endorsement No. 40136 provided UIM benefits.

We next address whether the circuit court awarded plaintiff the proper amount of insurance benefits. We believe it did.

The limit of endorsement No. 40136 is $30,000, and it clearly allows a setoff. Plaintiff does not dispute receiving $15,000. Thus, the amount awarded plaintiff is affirmed. We note, however, that the circuit court implied UIM limits of $30,000. Why the court did this is unclear in light of the policy’s express grant of UIM coverage and the fact that all coverages provided by this endorsement had limits of $30,000. In any event, even though the circuit court erred in its method of obtaining the result, the amount awarded was nevertheless proper.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONNIE DOCKERY, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 91—3041
    Opinion filed April 13, 1993.

      Michael J. Pelletier, of State Appellate Defender’s Office, and Paul Bradley, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Hareena Meghani-Wakely, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Defendant Ronnie Dockery was charged with possession of a controlled substance with intent to deliver. Following a bench trial, he was found guilty and sentenced as an habitual criminal to a term of natural life in the custody of the Department of Corrections. On appeal, he contends that (1) the circuit court found him guilty of simple possession rather than possession with intent to deliver; (2) his trial counsel labored under a conflict of interest by jointly representing both him and his codefendant brother; and (3) the State failed to prove that he knowingly possessed a controlled substance with intent to deliver.

Defendant was charged with possession with intent to deliver a substance containing more than 30 grams of phencyclidine (PCP). (Ill. Rev. Stat. 1989, ch. 56½, par. 1401 (a)(10).) Defendant’s brother, Gregory Dockery, and Genese Jamerson were charged with the same offense; Gregory was also charged with armed violence, unlawful use of a firearm by a felon, and delivery of a controlled substance. Thomas Almore was charged with possession with intent to deliver a substance containing less than 10 grams of PCP. Defendant and his brother retained a private attorney to jointly represent them at trial. Together, they filed a motion to quash their arrests and suppress evidence, which was heard simultaneously with their trial and that of Almore, who was represented by the public defender.

At trial, Officer Victor Gurolla of the Chicago police department testified that he received information by means of a phone call that drugs were being sold from an apartment at 1802 South Millard in Chicago. On March 7, 1990, at approximately 9 p.m., he went to that address with several other officers in order to make a “controlled purchase of narcotics.” The other officers waited outside as Gurolla approached the first-floor apartment. When Gurolla rang the doorbell, Gregory opened the door and asked what he wanted. When he responded that he wanted a “quarter ounce of water,” a street name for PCP, Gregory admitted him into the apartment and asked for $100. Gurolla handed Gregory $100 in prerecorded bills, which Gregory placed in his right pocket. Gregory then chose an amber bottle from among several bottles on a table and handed it to Gurolla, who then left the apartment.

Gurolla went to the side of the building where the other officers were waiting. They opened the bottle and determined from the amber color and unique odor that it contained liquid PCP. Gurolla then returned to the apartment with Officers Michael McMeel and Benjamin Almazon, while two other officers remained outside to guard the exits. Gurolla rang the doorbell and Gregory again opened the door. When Gurolla announced his office, Gregory tried to retreat into the apartment, but Gurolla was able to grab him and place him under arrest. Gurolla then searched Gregory and found a loaded .32-caliber revolver and $1,690 in cash, including the $100 in prerecorded bills.

While Gurolla was occupied with Gregory, Almazon and McMeel entered the apartment and found defendant, Almore, and Jamerson sitting in the dining room. Gurolla saw defendant pick up two large foil packets and hand them to Jamerson, who was sitting across from him. Jamerson attempted to conceal the packets under her jacket, but when McMeel asked her to open her jacket, the packets fell out. Gurolla also saw Almore grab a baby food jar containing a crushed green plant from the table and run into the bathroom. Almazon followed Almore and recovered the jar.

After everyone was placed under arrest, Gurolla conducted an inventory of the items in the dining room, including an unloaded shotgun which was found leaning against the wall. The officers also found on the dining room table five amber bottles containing liquid PCP, some aluminum foil, a mask, numerous empty bottles, a packet of sandwich bags, and a scale. Based on his knowledge from many narcotics investigations, Gurolla explained that masks are worn by persons working with liquid PCP due to the fumes and the odor, and aluminum foil is used to make $10 or $20 “squares” of PCP, which are then packaged in sandwich bags for street dealers.

Officer Michael McMeel testified that after Gurolla apprehended Gregory, he and Almazon entered the first-floor apartment. He saw several people sitting at a dining room table, one of whom was defendant, who gave two tinfoil packets to Jamerson, who shoved them inside her coat and held them close to her chest. He grabbed Jamerson and held open her coat, causing the two packets to fall out. When he opened the packets, he found that each contained five amber vials of a liquid he believed to be PCP. He then saw Almazon chase Almore toward the back of the apartment after Almore took a baby food jar which contained a green, plant-like substance from the table and ran from the dining room. He also saw “a roll of tinfoil, some masks, [and] several empty brown vials” on the dining room table. He explained that liquid PCP must be refrigerated to maintain its potency, and it is commonly wrapped in foil in order to keep it from freezing.

Officer Benjamin Almazon testified that when he entered the apartment, he saw defendant hand a tinfoil packet to Jamerson. He then saw Almore grab a jar from the center of the table and run out of the room. He chased Almore into the bathroom, where he saw him attempt to dump the contents of the jar down the toilet. He recovered the jar, which still contained a crushed green plant that had been adulterated with what he believed to be PCP. He then returned to the dining room, where he saw various drug paraphernalia on the table, including the foil packets recovered from Jamerson, as well as a shotgun and a handgun.

The State then offered into evidence a series of stipulations. First, the parties agreed that the amber bottle of yellow liquid that Gregory allegedly sold to Gurolla was determined to contain 8.39 grams of PCP. The parties also stipulated to the contents of the two foil packets which were recovered from Jamerson by McMeel; the packets contained 10 vials, with an estimated 83.5 grams of PCP, which was determined after four vials were randomly tested and were found to contain 33.4 grams. They also agreed that the five other vials recovered from the apartment contained 40.14 grams of PCP. Finally, they agreed that the jar recovered by Almazon contained a crushed green plant soaked in liquid PCP, with a weight of 7.7 grams. The State then rested, and the court stated that “it was going to deny [the] motion” to quash the arrests and suppress the evidence.

Defendant testified that on March 7, 1990, he lived in the first-floor apartment at 1802 South Millard. At approximately 9:30 that evening, when he opened the door in response to his doorbell, he saw Gurolla, who told him that he was under arrest for selling drugs to him. Defendant responded to Gurolla that he did not sell anything to him. Almazon entered the apartment through the front door, while McMeel and three other officers came in through the back. Gurolla then searched defendant and asked him for the money. Defendant replied that he had none. McMeel then searched Gregory and found some money on him, but not as much as the police claimed.

During cross-examination, defendant stated that he had been home for approximately one hour before the police came, and that Gregory, Almore, and Jamerson were already there when he arrived. The doorbell did not ring during that hour, but if it had, he would have opened the door because he was the “[o]nly person who answered] the door” when he was home. When the police entered the apartment, the dining room table was bare. Although the police found the liquid POP and the paraphernalia in the apartment, no PCP was sold in the apartment that night. Though there was a shotgun in the apartment, it was kept in the bedroom rather than in the dining room. Following defendant’s testimony, the court denied the motion to quash the arrests and suppress evidence.

Codefendant Almore then testified. At approximately 9:30 p.m., on March 7, 1990, he was sitting in the living room at 1802 South Millard when he heard a knock on the door. Defendant answered the door, three police officers entered the apartment, and they arrested everyone in the apartment. He had no drugs with him that night and did not grab a jar from the table and run into the bathroom. The dining room table was bare before the police arrived, but the drugs and paraphernalia were found in the apartment. He had previously seen a shotgun in the apartment, but it was usually kept in the front bedroom.

In rebuttal, the State introduced certified copies of defendant’s prior convictions, which included a 1983 armed robbery conviction and a 1991 conviction for theft. The State also introduced a certified copy of Almore’s 1983 theft conviction. Following closing arguments, the court found defendant “guilty of unlawful possession of a controlled substance as contained in Count 2,” which charged him with the “unlawful possession of a controlled substance with intent to deliver.”

At the sentencing hearing, the parties stipulated to defendant’s eligibility for sentencing as an habitual offender under the Habitual Criminal Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 33B — 1), agreeing that his 1977 and 1983 armed robbery convictions, combined with the present conviction, satisfied the Act’s requirements. Defendant offered nothing in mitigation and was sentenced to prison for natural life.

On appeal, defendant first contends that the circuit court found him guilty of simple possession, rather than possession with intent to deliver, and therefore improperly sentenced him to imprisonment as an habitual criminal. Defendant points out that when the court announced its findings on June 3, 1991, it stated:

“[THE COURT]: As to Almore *** motion to quash [arrest and] suppress evidence denied. Finding of guilty on unlawful possession [of] 7.7 grams of a controlled substance that was found in the bottle.
As to Gregory Dockery, motion to quash arrest and suppress evidence denied. There will be a finding of not guilty as to counts 1 and 3, and [a] finding [of] guilty as to counts 2 and 4.
As to [defendant], motion to quash arrest and suppress evidence is denied. And as to him there will be a finding of guilty of unlawful possession [of a] controlled substance as contained in count 2.
* * *
[ALMORE’S COUNSEL]: Judge just for clarification. As to Mr. Almore are you finding him guilty of possession with intent or straight possession?
[THE COURT]: No. I said unlawful possession.”

Defendant asserts that because the court used the same language in announcing its finding concerning defendant as that for Almore, and because simple possession is a lesser included offense of possession with intent to deliver, the court in reality found defendant guilty of the lesser rather than the greater offense. The State responds that the circuit court found defendant guilty of possession with intent to deliver because it used the words “as contained in Count 2” and because it later clarified its finding on three separate occasions.

The court, at the request of the State, first clarified its finding when it examined the half-sheet and told the prosecutor that it had found defendant guilty of “whatever Count 2 says.” The court reaffirmed that finding at. the hearing on defendant’s motion to reconsider, when the State informed the court of its intention to seek a sentence under the Habitual Criminal Act. Finally, at the sentencing hearing, defense counsel asserted that since the court had used the same words it used concerning Almore, the court must have intended the same result, specifically, guilty of simple possession. The court responded:

“[THE COURT]: No ***, I said as to Count 2. Count 2 charges possession of controlled substance with intent to deliver and that’s what I found [defendant] guilty of. *** That’s what the transcript shows.”

Despite defendant’s protestations to the contrary, we are satisfied that the court’s initial usage of the phrase “as contained in Count 2,” as well as the court’s repeated clarifications, clearly reflect that defendant was found guilty of possession with intent to deliver rather than simple possession. Accordingly, defendant’s contention that he was improperly sentenced to life imprisonment as an habitual criminal must fail.

Defendant next contends that his trial counsel labored under an impermissible conflict of interest when he represented both his brother and him at trial. Defendant asserts that his attorney was unable to advocate effectively for him without doing “serious damage” to his brother’s case. He maintains that his attorney failed to use the “obvious theory of defense,” and that the attorney had him testify merely to help his brother’s case, thereby allowing the State to introduce damaging evidence against him. The State responds that defendant has simply presented “unsupported or speculative conflicts,” and has not demonstrated that an actual conflict existed which affected the representation. We agree with the State.

Although an attorney’s representation of multiple defendants with hostile interests will constitute a denial of the constitutional guarantee of effective assistance of counsel (Cuyler v. Sullivan (1980), 446 U.S. 335, 349, 64 L. Ed. 2d 333, 347, 100 S. Ct. 1708, 1719), the mere fact of joint representation does not constitute a per se violation of that right. (Holloway v. Arkansas (1978), 435 U.S. 475, 482, 55 L. Ed. 2d 426, 433, 98 S. Ct. 1173, 1178; People v. Robinson (1979), 79 Ill. 2d 147, 168, 402 N.E.2d 157, 167; People v. Mendez (1991), 221 Ill. App. 3d 868, 872, 582 N.E.2d 1265, 1268, appeal denied (1992), 143 Ill. 2d 644, 587 N.E.2d 1021.) Instead, a defendant must demonstrate that “an actual conflict of interest adversely affected his lawyer’s performance” (Cuyler, 446 U.S. at 350, 64 L. Ed. 2d at 348, 100 S. Ct. at 1719), by “pointing] to some specific defect in his counsel’s strategy, tactics, or decision making attributable to the conflict.” (People v. Spreitzer (1988), 123 Ill. 2d 1, 18, 525 N.E.2d 30, 36, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) In order to satisfy this burden, a defendant must allege more than mere hypothetical or speculative conflicts (Robinson, 79 Ill. 2d at 169, 402 N.E.2d at 168; People v. Berland (1978), 74 Ill. 2d 286, 301, 385 N.E.2d 649, 655, cert. denied sub nom. Wolf v. Illinois (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 63), and the record must demonstrate that the defense was inhibited by the joint representation. People v. Jones (1988), 121 Ill. 2d 21, 30, 520 N.E.2d 325, 329.

Defendant argues that his attorney ignored the “most obvious theory of defense,” that the drugs belonged to Gregory, and he was merely trying to help his brother by handing the foil packets to Jamerson as the police entered the apartment. However, the simple existence of alternative strategies which counsel could have relied upon will not establish an impermissible conflict of interest. Illinois courts have repeatedly held that the mere possibility that an available strategy would have helped one defendant at the expense of another is inadequate to demonstrate that their interests were hostile. (See People v. Echols (1978), 74 Ill. 2d 319, 327-28, 385 N.E.2d 644, 648; People v. Durley (1972), 53 Ill. 2d 156, 160, 290 N.E.2d 244, 246; People v. Sanders (1991), 209 Ill. App. 3d 366, 375, 568 N.E.2d 200, 206, appeal denied (1991), 139 Ill. 2d 602, 575 N.E.2d 921.) The fact that another attorney might have asserted a different theory of defense is irrelevant to our review, because “a positive basis must be found” in the record before determining that an actual conflict of interests existed. (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, 676, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858; see also Sanders, 209 Ill. App. 3d at 375, 568 N.E.2d at 206.) Here, there is no “positive basis” in the record, and thus defendant has failed to satisfy his burden that an actual conflict of interests existed.

Moreover, the mere fact that the attorney allowed defendant to testify is insufficient to establish a conflict of interest. Defendant^ alleges that his attorney’s decision to have him testify was improper because it was meant to bolster the motion “which was the only hope Gregory *** had unless the [circuit court] believed the police planted the physical evidence.” The record, however, does not indicate that the attorney had defendant testify in order to bolster Gregory’s case. Instead, it demonstrates that the court had already expressed its inclination to deny the motion. Thus, any attempt to bolster the motion was likely to have been fruitless. Contrary to defendant’s assertions, a reasonable interpretation is that defendant’s testimony was intended to support a common theory of defense, a complete and total denial of the allegations against all defendants, and therefore was intended to benefit everyone on trial. Thus, the decision to allow defendant to testify was merely a matter of trial strategy and is therefore entitled to a strong presumption of validity. People v. West (1986), 142 Ill. App. 3d 876, 878, 492 N.E.2d 566, 568.

Finally, the simple fact that some damaging evidence was introduced as a result of defendant’s testimony does not indicate a conflict of interest. Although defendant’s admission that the drugs and paraphernalia were found in the apartment was damaging to his case, as was his testimony that he lived in the apartment, neither can be attributed to a conflict arising from the joint representation. Nor did the introduction of defendant’s prior convictions in the State’s rebuttal case indicate a conflict. Rather, all of this evidence was merely the result of the strategic decision to have defendant testify. Once defendant took the stand, he was subject to cross-examination and his credibility was subject to challenge. This record provides no basis for concluding that defendant’s attorney labored under an impermissible conflict of interest.

Defendant last contends that the State failed to prove that he knowingly possessed more than 30 grams of a controlled substance with intent to deliver. He asserts that because the vials were wrapped in foil, there was no proof that he knew what they contained. He also maintains that reasonable doubt exists as to whether he possessed more than 30 grams of POP because the evidence was conflicting as to the number of packets he possessed and it was unknown which packet contained the vials that were tested to determine the estimated weight of the POP. Finally, he maintains that the circuit court failed to exclude the reasonable hypothesis that he merely handed the packets to Jamerson in order to protect his brother and that, therefore, it was improper to rely on circumstantial evidence that he intended to deliver the drugs.

A reviewing court will not set aside a conviction on the ground of insufficient evidence, unless “the evidence is so palpably contrary to the verdict or judgment that it is unreasonable, improbable or unsatisfactory and thus creates a reasonable doubt of guilt.” (People v. Witherspoon (1991), 216 Ill. App. 3d 323, 333, 576 N.E.2d 1030.) A circuit court’s determination will be reversed on appeal only if the reviewing court finds, after viewing the evidence in the light most favorable to the prosecution, that no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453, cert. denied (1990), 497 U.S. 1031, Ill L. Ed. 2d 798, 110 S. Ct. 3290.) The circuit court’s findings here were not unreasonable, improbable, or unsatisfactory.

Defendant relies on People v. Day (1977), 51 Ill. App. 3d 916, 366 N.E.2d 895, for the proposition that knowledge is not the equivalent of possession. In Day, the defendant .was charged with possession of 450 grams of cannabis after his car was stopped by police for a routine traffic violation. Six other individuals were in the car with him. After the officers detected the odor of cannabis, they searched the car and discovered the cannabis in a grocery bag on the floor beneath the legs of one of the passengers. The defendant was convicted of possession, but,' on appeal, the conviction was reversed because there was insufficient evidence that the defendant actually exercised control over the cannabis. (Day, 51 Ill. App. 3d at 918, 366 N.E.2d at 897.) The appellate court held that his status as an owner-driver of the vehicle did not put him in possession of everything in the car when other passengers who might be in possession of the contraband were present. Day, 51 Ill. App. 3d at 918, 366 N.E.2d at 897.

Unlike the defendant in Day, defendant here was actually shown to be in control of a significant quantity of POP. The testimony established that defendant was sitting at the dining room table and handed two packets to Jamerson as the police entered the apartment. Those two packets later were determined to contain approximately 83.5 grams of POP, an amount stipulated to by defendant, and which he is therefore estopped from challenging on appeal. (See People v. Baynes (1981), 88 Ill. 2d 225, 239, 430 N.E.2d 1070, 1076.) We therefore find the holding in Day to be inapplicable to the case at bar.

Moreover, in his argument concerning the presence of reasonable doubt, defendant stresses Almazon’s testimony that he saw defendant pass only one packet to Jamerson, and asserts that it is unclear which packet supplied the bottles which were ultimately tested to determine the estimated total weight. However, the existence of minor inconsistencies in the evidence is insufficient to raise a reasonable doubt where the trier of fact resolved them in the State’s favor and the conviction is founded upon substantial and credible evidence. (People v. Young (1985), 133 Ill. App. 3d 886, 890, 479 N.E.2d 494, 497.) Here, the evidence supported the conclusion that defendant handed Jamerson two packets, and thus no question exists regarding the source of the bottles which were tested to determine the estimated weight of the PCP.

Similarly, the evidence demonstrates that defendant knew the contents of the packets. Because knowledge can rarely be proven by direct evidence, it can be shown by evidence of conduct which raises the inference that the defendant knew of the existence of the contraband. (People v. Pintos (1989), 133 Ill. 2d 286, 292, 549 N.E.2d 344, 347; People v. Embry (1960), 20 Ill. 2d 331, 334, 169 N.E.2d 767, 768.) Defendant’s actions in attempting to hide the packets when the police entered the apartment, in combination with the evidence that there was much drug paraphernalia on the table, raised the reasonable inference that he knew the packets contained drugs. Because nothing in the record rebuts this inference, the circuit court properly found that defendant knowingly possessed the PCP.

Furthermore, the evidence was sufficient to prove beyond a reasonable doubt that defendant possessed the controlled substance with the intent to deliver. Contrary to defendant’s assertions, our supreme court has explicitly held that “the reasonable hypothesis of innocence test is no longer viable in Illinois.” (Pintos, 133 Ill. 2d at 291, 549 N.E.2d at 346.) Instead, the reasonable doubt standard is applied regardless of whether the case is based on direct or circumstantial evidence. Pintos, 133 Ill. 2d at 291, 549 N.E.2d at 346.

Intent to deliver a controlled substance is seldom amenable to direct proof and typically must be inferred circumstantially on a case-by-case basis. (People v. Kline (1976), 41 Ill. App. 3d 261, 266, 354 N.E.2d 46, 51.) A reasonable inference of intent to deliver arises from the defendant’s possession of a quantity of contraband in excess of the amount designed for personal use. (See People v. Birge (1985), 137 Ill. App. 3d 781, 791, 485 N.E.2d 37, 44 (State sufficiently established intent to deliver when defendant possessed 51 pounds of cannabis); People v. Schaefer (1985), 133 Ill. App. 3d 697, 702-03, 479 N.E.2d 428, 432-33 (intent established where defendant had in his residence a bottle containing acetone, a bag containing rolling papers and 578.8 grams of cannabis).) Moreover, the inference may be supported by other factors, including the manner in which drugs are kept, as well as the existence of cash, drug paraphernalia, and weapons. People v. Berry (1990), 198 Ill. App. 3d 24, 28-29, 555 N.E.2d 434, 437; People v. Friend (1989), 177 Ill. App. 3d 1002, 1021, 533 N.E.2d 409, 421, appeal denied (1989), 126 Ill. 2d 563, 541 N.E.2d 1110; People v. Marshall (1988), 165 Ill. App. 3d 968, 977, 521 N.E.2d 538, 543, appeal denied (1988), 119 Ill. 2d 567, 522 N.E.2d 1252.

Here, several facts support the inference that defendant intended to deliver the PCP. First, the 10 bottles in the two foil packets contained an estimated 83.5 grams of PCP, or approximately 8.35 grams each. Assuming that each bottle represented the amount designed for personal use, an assumption which is bolstered by the fact that the bottle purchased by Gurolla contained 8.39 grams of PCP, the fact that defendant was found with approximately 10 times that amount raises an inference of his intent to deliver. Second, the existence of the drug paraphernalia on the dining room table indicated that defendant intended to process and package the PCP for later sale. Third, two weapons were found in the apartment. And finally, a significant amount of cash, $1,690, was recovered from Gregory. The circuit court’s finding that defendant intended to deliver the PCP was not against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN and SCARIANO, JJ., concur.