author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NORMAN DOBRINO, Defendant-Appellant.
    First District (1st Division)
    Nos. 1—88—0733,1—90—3224 cons.
    Opinion filed March 30, 1992.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica Calderon, and Catherine A. Hufford, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant, Norman Dobrino was convicted on three counts of delivery of a controlled substance (Ill. Rev. Stat. 1987, ch. 56x/2, par. 1401(a)(2)), sentenced to 10 concurrent years’ imprisonment on each count, and fined $25,000 on each count. Defendant appealed, and while his appeal was pending, he filed a petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.). The trial court summarily dismissed defendant’s petition, without a hearing. Defendant also appeals that order. These two appeals have been consolidated for disposition. On appeal, defendant contends that: (1) the trial court erred in prohibiting defendant from presenting evidence of his lack of prior narcotics convictions and evidence of alleged police intimidation, to support his defense of entrapment; (2) the trial court erred in sentencing defendant to an extended term of 10 years for delivery of more than 30 grams of a controlled substance containing cocaine; and (3) the trial court erred in summarily dismissing defendant’s pro se post-conviction petition. For the following reasons, the judgment of the trial court is affirmed.

The record sets forth the following facts relevant to this appeal. Prior to trial, defendant moved to discharge the indictments on the grounds of prosecutorial misconduct. Defendant alleged that on the evening before trial, police officers had gone to defendant’s home and kicked one of defendant’s dogs so severely that it had to be put to sleep. Defendant alleged that these men threatened that if certain witnesses testified at trial, they would return and kill the other dog. According to defendant, the men wore ski masks and had covered the license plates on their unmarked car. The trial court denied defendant’s motion and barred defense counsel from introducing any evidence of the incident to the jury, because defendant had no proof that the incident actually took place. The trial court then granted the State’s motion in limine to prevent any evidence of defendant’s lack of prior convictions or arrests.

On September 3, 1986, defendant was arrested for selling 12 ounces of cocaine to an undercover Chicago police officer. At trial, Chicago police officer Philip Pariso testified on behalf of the State that, on August 12, 1986, he first met with Gina Ranallo at the Drug Enforcement Administration (DEA) offices. Ranallo told Pariso that she had been dealing cocaine for defendant and his wife, Sabine Dobrino. Ranallo told Pariso that the defendant lived at 1421 West Wolfram, Chicago. Ranallo told Pariso that she had problems with the Dobrinos because she owed them money. Pariso told Ranallo he would try to help her.

On August 13, at approximately 8 p.m., Pariso and Ranallo went to defendant’s home accompanied by a number of surveillance officers. When defendant answered the door, Ranallo introduced Pariso as her boyfriend, “Joey.” Defendant and Sabine began to argue with Ranallo about the amount of money Ranallo allegedly owed them. After approximately a half an hour, Pariso took $200 out of his pocket and handed it to defendant to repay Ranallo’s debt because Ranallo had told him that she owed defendant $200. Defendant told Pariso that Ranallo’s debt was actually closer to $5,000 or $6,000. Pariso and Ranallo left defendant’s home shortly thereafter.

On August 15, Pariso called defendant on the telephone and told him he wanted to come over to discuss Ranallo’s debt. Accompanied by a surveillance officer, Pariso arrived at defendant’s home at approximately 1 p.m. Pariso talked to defendant in the front room. Defendant showed Pariso a blue ledger book of names and numbers in an attempt to prove that Ranallo owed him $4,875. Defendant explained that girls dealt small amounts of cocaine for him and Sabine, and that the ledger book showed the amounts of money owed to them by the girls. Defendant stated that Sabine handled the girls, while he handled the larger customers. At that time, Pariso told defendant that he was interested in buying some cocaine, and defendant showed Pariso his price list for ounces of cocaine.

Pariso told defendant that he was not sure he wanted to pay such a large debt for Ranallo, but that if they did some business together with the cocaine, he may be able to pay the debt off a little bit at a time. Pariso left defendant’s house approximately 45 minutes later.

On August 18, at approximately 11 a.m., Pariso called defendant’s house and spoke to Sabine. Pariso told Sabine that he wanted to buy a couple ounces of cocaine, and Sabine told Pariso that the cost would be $1,500 an ounce, but that he should call back later because defendant was sleeping. Pariso called back at 2 p.m. and defendant told Pariso to come over. Pariso arrived at defendant’s house at 2:45 and he again discussed Ranallo’s debt with defendant. Defendant then went into a bedroom and returned to the front room a few minutes later. Defendant handed Pariso two packs of Parliament cigarettes, each containing a clear plastic bag containing one ounce of cocaine. Pariso gave defendant $3,000.

Defendant told Pariso that his “source” lived around O’Hare airport and that he gets two or three kilos of cocaine a week. Defendant said that he had a half a pound of cocaine on hand at that time, and that he was expecting a new batch to come in. After a half an hour, Pariso left. He did not arrest defendant at that time because he was hoping to learn the identity of his source. Analysis of the cocaine revealed that it was 88% pure and Pariso estimated the street value at approximately $35,000.

Pariso called defendant again on August 25 and told him he wanted to buy two more ounces of cocaine. On August 26, Pariso went back to defendant’s house and purchased two ounces of cocaine for $3,000. Pariso told defendant he wanted to buy two kilos, and defendant said it would cost $80,000, but that he would have to talk to his supplier first.

On September 2, Pariso went to defendant’s house in the late afternoon and defendant told him that his supplier would not front him such a large quantity of cocaine, but would sell him a smaller amount. Pariso agreed to buy 12 ounces the next day for $1,400 an ounce, a total of $16,000.

On September 3, Pariso called defendant and defendant said he could only get 10 ounces of cocaine. Approximately 6:15 p.m. Pariso returned to defendant’s house. Defendant had previously told Pariso that he only felt safe making transactions in his home. At that time Pariso carried an electronic agent-alert device and was accompanied by a number of surveillance officers who intended to arrest defendant and execute a search warrant. Defendant escorted Pariso into a bedroom in the rear of the house and gave Pariso a package to weigh on a scale. As Pariso weighed the package, he hit the agent-alert signal. They heard pounding on the front door and defendant told Pariso to hide in a closet.

Defendant and Sabine were arrested. One officer asked defendant if he had any other drugs in the house and defendant said there were drugs in the bedroom. Defendant would not disclose any information about his supplier because he feared being killed. Police searched defendant and recovered three vials in his pocket, each containing one gram of cocaine. Officers then searched the bedroom and found a clear plastic bag of cocaine on the dresser, a container of cocaine, a plastic bag of Manitol in a ceiling panel, $927 in cash, and devices used for grinding and cutting cocaine for packaging. Defendant was transported to the DEA office, where he threatened to have Pariso killed if he testified against him in court.

On cross-examination Pariso testified that he had never met Ranallo prior to August 12, 1986, and denied going to defendant’s home prior to August 13, 1986. Pariso said that the ledger book was not inventoried until July 1987 because it was in the custody of officers in the financial unit who used the book to prepare for their criminal conspiracy and asset forfeiture case against defendant. Pariso stated that shortly after defendant was released from custody following his arrest on September 3, Pariso went to defendant’s home and advised him to stay away from Ranallo. He stated that based on information from Ranallo, three other individuals were arrested. He arrested Sabine in September 1987 and a search of the house uncovered more drug paraphernalia.

Gina Ranallo testified that she met defendant and Sabine in 1985 when she and Sabine were in the same bowling league. Ranallo stated that she had been to defendant’s house and had seen defendant and Sabine use cocaine in the house. Ranallo first tried cocaine in 1985 at defendant’s house and after that went to defendant’s house every week to use cocaine. She began selling cocaine in 1985 after Diane Weckett and another girl told her how much money they were making. Sabine wrote Ranallo’s name in a ledger notebook and gave her the cocaine to sell. Ranallo explained the columns in the book and stated that sometimes defendant would make the entries. Ranallo sold drugs for defendant for approximately nine months, until the end of May or early June 1986.

Ranallo stated that she used more cocaine than she sold and that she owed defendant money for the cocaine in addition to $1,000 Sabine had lent her. When she told defendant she wanted to quit selling cocaine, he told her that she had to either pay him back the money or sell cocaine until the debt was paid. Ranallo stated that defendant called her constantly on the phone asking for the money. On August 11,1986, Ranallo called the police.

On August 12, Ranallo met with Officers James Marino and Rosemary Berzinski and agreed to work with them. She told the officers that she could bring an officer to defendant’s house only if he posed as her boyfriend. That evening she met Pariso, who would pose as her boyfriend “Joey.”

On August 13, Ranallo took Pariso to defendant’s house for the first time and introduced him as her boyfriend “Joey.” They discussed Ranallo’s debt and Pariso gave defendant $200. Defendant told Pariso it was not enough money, gave Pariso his number and told Pariso to contact him to make an agreement. Ranallo never returned to defendant’s house with Pariso after August 13.

One night in September 1986, after defendant had been arrested and released from custody, Ranallo encountered defendant waiting for her in the gangway of her apartment building. Defendant threatened Ranallo and slapped her in the face. She stated that she and her family also received threatening phone calls from defendant and Sabine.

On cross-examination, Ranallo said that the writing in the ledger book looked like Sabine’s handwriting. On redirect, Ranallo said that none of the other girls listed in the ledger would go to the police and that they were no longer friends since she had gone to the police.

Next, Officer James Marino testified regarding the meeting with Ranallo, corroborating Ranallo’s and Pariso’s testimony and adding that he was a surveillance officer on each trip Pariso made to defendant’s home. Marino testified that he obtained a search warrant on September 3, 1986, which allowed the officers to search for any controlled substances or narcotics, and any ledgers, books or records that could substantiate any sale of narcotics. Police recovered cocaine from defendant’s pockets and took photographs of the items recovered in the search of defendant’s home. Marino stated that he saw two propane torches in defendant’s home on September 3, 1986, and did not take them at the time, although they were eventually recovered. He also stated that while he knew that Officer Pariso smoked cigarettes, he had never seen him smoke Parliaments.

Detective Michael Cummings testified that he was involved in the execution of the search warrant on September 3, 1986, and that at that time, he discovered his gun missing. He searched for the gun for 20 to 30 minutes, and failing to find it, filled out a lost-and-found report that evening. A few days later, defendant’s attorney called the station and said the gun had been found in defendant’s home. Cummings retrieved his gun and filed a report showing the date the gun was returned. He denied purposefully leaving the gun at defendant’s home.

At the close of the State’s case, the defense moved for directed verdict and the motion was denied. Norma Jollotta testified for the defense. She stated that she and defendant had been close for many years. She had known Ranallo for five or six years. Jollotta denied having ever seen cocaine in defendant’s house and denied ever using or selling cocaine. On cross-examination, she stated that she had heard about defendant’s arrest, but denied being in his home during August or September of 1986. She stated that at that time, Sabine was not in good shape. She never saw any drug paraphernalia in defendant’s bedroom in the many times she had been to defendant’s house. She did not know the names listed in the ledger. Diane Weckett is Jollotta’s sister-in-law and is a very close friend of both defendant and Sabine.

Next, defendant testified that in August 1986 he was on medical leave from Coca Cola Bottling Company and had been on leave since around Thanksgiving, 1984. He stated that he got to know Ranallo through his wife because they were good friends. He stated that he met Pariso, introduced to him as “Joey,” in late May or early June of 1986 when Ranallo brought him to his home. Defendant stated that they would come to his house frequently to socialize.

Approximately mid-June, Pariso told defendant that he was a drug dealer but that he had lost his supplier. Pariso said that he wanted to make some money and repay some of the money defendant had lent to Ranallo, if defendant could supply him with drugs. Pariso said that he would take care of everything, and all defendant had to do was get the bulk packages. After three to five conversations, defendant told Pariso he would find him a new supplier. Pariso also asked if they could run the drugs from defendant’s house because it was a discreet place, and defendant agreed to let Pariso use the bedroom.

Defendant testified that he first obtained drugs for Pariso in late June 1986. Defendant brought one ounce of cocaine home and Pariso came over with a “box of stuff.” Pariso went into the bedroom, came out a few minutes later, and left shortly thereafter. Defendant stated that he gave Pariso the cocaine in cigarette packs supplied by Pariso. Defendant admitted that he gave Pariso two ounces of cocaine on August 18 and 21, but denied making any profit on the sale. When defendant returned home from jail, he found a gun tucked between his waterbed mattress and frame. Defendant called his attorney and turned the gun over to the attorney.

Defendant denied going to Ranallo’s house and slapping her. He testified that Ranallo continuously made harassing phone calls to his home while he was in jail and that when he was released he called her and told her to stop or he would “ruin her bowling.” The next day, Pariso came over to defendant’s home and told him to stay away from Ranallo. Defendant stated that he had 10 or 15 tapes of Ranallo’s phone calls, but that Pariso had confiscated them.

Defendant denied that Ranallo or any other girls sold cocaine for him, and said that he had never seen the ledger book. He further stated that the writing in the book was neither his nor that of his wife. He stated prior to June 1986 he had never been involved in selling cocaine.

On cross-examination, defendant testified that he ran across many different people in his job as a vending machine repairman. He knew the general area to go to find a drug supplier for Pariso, and went to Wells Street. Defendant talked to a man named “Nick” who he met through a man named “Bob.” He would not give the last names of either man because they had threatened to kill him.

Defendant further testified that he had supplied Pariso with cocaine five or six times prior to August 18, 1986, and did so because he was running low on money. He stated that his bank account was dwindling because his wife had had several operations and one of their cars had been wrecked. He admitted that he had purchased some of the drug paraphernalia found in the bedroom. He admitted that his wife smoked Parliament cigarettes and denied having any cocaine on his person at the time of arrest. He stated that the propane tanks belonged to him and his brother-in-law and were kept with his other tools for soldering.

Carol Diamond testified that at the time of the drug transactions she was staying with defendant and Sabine in a spare room. Diamond said that she knew Gina and that Gina’s allegations about defendant’s cocaine use were false. Diamond stated that she met Pariso in May 1986 when Gina introduced him as her boyfriend, and that defendant was not home at the time. She never saw a ledger book, even though she often cleaned house for defendant. She never saw any narcotic drugs or drug paraphernalia. She did not go to the police station to help defendant and Sabine after they were arrested because she thought it would not do them any good.

Following closing arguments and deliberations, the jury found defendant guilty on three counts of delivery of a controlled substance. After a hearing, defendant was sentenced to 10 years on each count to run concurrently and fined $25,000 on each count. Defendant’s timely appeal followed.

Initially, defendant contends that he was deprived of due process of law when the trial court granted the State’s motion in limine prohibiting evidence that defendant lacked prior narcotics convictions. Defendant argues that such evidence would have shown his lack of predisposition to sell cocaine in support of his defense of entrapment. Entrapment is defined in section 7 — 12 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 12), which states in relevant part:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.”

In response, the State argues that defendant was not entitled to present evidence that he had no prior narcotics convictions in order to bolster his good character. (See People v. Batinich (1990), 196 Ill. App. 3d 1078, 1085-86, 554 N.E.2d 613.) In Batinich, the defendant was charged with delivery of a controlled substance and sought to introduce evidence that he was a law-abiding citizen through the facts that the had never been arrested, charged or convicted of a crime. Batinich, 196 Ill. App. 3d at 1085.

Citing People v. Flax (1986), 147 Ill. App. 3d 943, 498 N.E.2d 667, the Batinich court stated that a defendant in a criminal case could present evidence of his good character in order to establish that his character traits are inconsistent with the commission of the crime charged, but further stated that the admission of such evidence was within the sound discretion of the trial court. (Batinich, 196 Ill. App. 3d at 1085-86; see also People v. Kurena (1980), 87 Ill. App. 3d 771, 778, 410 N.E.2d 277.) The Batinich court ultimately held that even if evidence of a defendant’s past criminal history or lack thereof should have been admitted, it was harmless error.

Batinich, however, is distinguishable from the present case in that the defendant there did not raise the affirmative defense of entrapment. Flax is distinguishable in that it is not even a narcotics case and also does not involve entrapment. Batinich and Flax are further distinguishable in that they held that a criminal defendant could not prove his good character by presenting evidence of the fact that he had never been convicted of a crime. Batinich, 196 Ill. App. 3d at 1085; Flax, 147 111. App. 3d at 952.

In the present case, defendant attempted to present similar evidence to prove an element of his affirmative defense of entrapment, which is an entirely different purpose and use of the evidence. The present case is more similar to People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018, wherein the Illinois Supreme Court held that a victim’s convictions for violent crimes are admissible to show that the victim was the aggressor when the defense of self-defense is raised. In Lynch, the court reasoned that the convictions would affect the jury’s judgment of the credibility of the various versions of the facts. (Lynch, 104 Ill. 2d at 199.) The court held that it was error not to afford the defendant the opportunity to present evidence of the victim’s history of aggressive behavior by admitting the victim’s convictions. 104 111. 2d at 199.

Predisposition is established by a defendant’s willingness to participate in criminal activity before defendant’s initial exposure to government agents. (People v. Connor (1988), 176 Ill. App. 3d 900, 906, 531 N.E.2d 966.) Other factors to be considered in assessing predisposition include defendant’s initial reluctance or willingness to commit the crime, the defendant’s familiarity with drugs and his willingness to accommodate the needs of drug users, the defendant’s willingness to make a profit from the illegal act, the defendant’s prior or current use of drugs, and the defendant’s participation in the testing of drugs. (People v. Keen (1990), 206 Ill. App. 3d 940, 564 N.E.2d 1314.) Whether defendant had ready access to a drug supply may be considered. People v. Beavers (1986), 141 Ill. App. 3d 790, 795, 491 N.E.2d 438.

In People v. Bean (1978), 63 Ill. App. 3d 264, 379 N.E.2d 723, the defendant, in an effort to demonstrate that he was not predisposed to commit the crime of delivering a controlled substance, presented evidence that he had never been arrested prior to the charged occurrence. (Bean, 63 Ill. App. 3d at 274.) The court stated that “while the past history of a defendant may be a relevant consideration in determining whether there has been entrapment, it is not controlling.” 63 Ill. App. 2d at 274, citing People v. Washington (1967), 81 Ill. App. 2d 162, 225 N.E.2d 673.

Although the disputed evidence may not be controlling, it is evidence that tends to imply that defendant was not predisposed to deal narcotics. Since predisposition is an element of the affirmative defense of entrapment, defendant must be given the opportunity to present such evidence. (U.S. Const., amend. XIV; People v. Katsigian nis (1988), 171 Ill. App. 3d 1090, 1097, 526 N.E.2d 508.) Therefore, the trial court erred when it excluded evidence of defendant’s lack of a criminal record.

In the instant case, the evidence against defendant of his predisposition to sell cocaine is overwhelming. The record indicates that defendant delivered cocaine to Officer Pariso on three occasions, beginning on August 18, 1986. Defendant admitted that he obtained cocaine five or six times for Pariso prior to August 18, and that he was not forced to do so, but did so because he was low on money. The record further shows that defendant was familiar with drugs and how to obtain them, as he knew where to go to find a supplier for Pariso. The record also shows that defendant used drugs, that he profited from drugs, and that he participated in the cutting of drugs. While the trial court excluded relevant evidence, the error was harmless beyond a reasonable doubt.

Next, defendant argues that the trial court erred in prohibiting defendant from presenting evidence of an alleged incident of police intimidation. Defense counsel argued prior to trial for the admission of evidence that police officers came to defendant’s house the night before his trial and threatened him, kicked his dog, and told him that if Diane Weckett and Norma Jollotta were to testify at trial, they would return and kill defendant’s other dog. Defense counsel told the court that defendant could not identify the men because they wore ski masks over their faces and the license plates on their car were covered. The trial court refused to admit the proposed evidence unless the defendant came up with proof that the incident actually took place. Defense counsel told the court it would “try to get the proof that the Court needs in order to tie it together.” At no time during the trial did defendant offer any proof to substantiate his claim. Defendant argues, nevertheless, that the evidence would have supported his claim of a police conspiracy.

The State responds that the trial court did not err in prohibiting admission of this evidence because defendant could not substantiate the identities of the alleged intimidators.

The test of admissibility of evidence is whether it fairly tends to prove the particular offense charged. (People v. Peter (1973), 55 Ill. 2d 443, 459, 303 N.E.2d 398.) Whether what is offered as evidence will be admitted or excluded depends upon whether it tends to make the question of guilt more or less probable, i.e., whether it is relevant. (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295; People v. Rodgers (1972), 53 Ill. 2d 207, 214-15, 290 N.E.2d 251.) A trial court may reject offered evidence on grounds of irrelevance if it has little probative value due to its remoteness, uncertainty or its possibly unfair, prejudicial nature. (People v. Boyd (1980), 81 Ill. App. 3d 259, 263, 401 N.E.2d 304.) The admission of evidence in criminal trials is within the sound discretion of the trial court, and its ruling should not be reversed absent a clear showing of abuse of that discretion. People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.

The evidence defendant sought to admit was his own testimony that the incident occurred and that he thought the intimidators were police officers. However, defendant failed to offer any other proof that the alleged incident had ever occurred. The evidence was uncertain, prejudicial, and open to speculation as defendant failed to substantiate the identities of the alleged intimidators. The relevance of the evidence was therefore questionable, and the trial court properly denied its admission.

Next, defendant contends that the court did not consider factors in mitigation in sentencing him to 10 years for delivery of more than 30 grams of a substance containing cocaine. The State responds that the trial court properly considered factors in aggravation and mitigation and that the sentence was within the statutory range.

This court is not a sentencing court, and the sentence of a trial court will be affirmed absent a clear abuse of discretion. People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 547; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884.

In sentencing a defendant, the trial court may consider the gravity and circumstances of the offense, as well as defendant’s mental capacity, age, demeanor and credibility. (E.g., Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.) Furthermore, the trial court must balance the objectives of protecting society and rehabilitating the defendant. (See People v. Harris (1989), 187 Ill. App. 3d 832, 844, 543 N.E.2d 859, 866.) Once struck, a reviewing court will hesitate to upset this balance, especially where the sentence falls within the statutory limitation. People v. Lambrechts (1977), 69 Ill. 2d 544, 559, 372 N.E.2d 641, 649.

The record in this case indicates that defendant was sentenced to 10 years for each of three counts, to be served concurrently. This sentence is well within the statutory guidelines for a Class X felony such as delivery of 30 grams or more of a controlled substance containing cocaine. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8— 1(a)(3) (for a Class X felony, a term shall be not less than 6 years and not more than 30 years).) The record indicates that the trial court considered that defendant was 47 years old, that since 1963 he had not been convicted of a crime, and that he worked at the same company for 19 years. The court also considered the hardship a sentence would cause defendant’s wife, but determined that his illegal activities “threaten serious physical harm to individuals and society at large.”

Consequently, defendant has failed to show that the trial court erred in sentencing him to an extended term.

Finally, defendant argues that the court erred in dismissing his pro se post-conviction petition without appointing counsel or conducting an evidentiary hearing.

An action brought under the Post-Conviction Hearing Act is a collateral attack on a judgment of conviction; it is not an appeal from that conviction. (People v. Green (1991), 218 Ill. App. 3d 71, 578 N.E.2d 169.) The purpose of the proceedings is to resolve allegations that constitutional violations occurred at trial when those allegations were not, or could not have been, adjudicated previously. (People v. Sanders (1991), 209 Ill. App. 3d 366, 373, 568 N.E.2d 200.) An evidentiary hearing is called for only when the petitioner makes a substantial showing of deprivation of constitutional rights, and to accomplish this, the allegations in the petition must be supported by the record in the case or by accompanying affidavits. (People v. Gaines (1984), 105 Ill. 2d 79, 91-92, 473 N.E.2d 868.) A trial court may summarily dismiss a petition for post-conviction relief if the petitioner fails to set forth facts which make the required showing as to the claimed constitutional deprivation (Green, 218 Ill. App. 3d at 75, 578 N.E.2d at 172), and the trial court’s determination will not be disturbed unless manifestly erroneous. People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830.

Defendant claims that he is entitled to a hearing because he was deprived of his right to effective counsel during his trial. Defendant contends that defense counsel was ineffective for failing to investigate and present key expert evidence, laboring under a conflict of interests, and failing to move to suppress illegally seized evidence.

The State responds that defendant’s failure to raise the issue of ineffective assistance of counsel on direct appeal constitutes a waiver of this issue for review. Alternatively, the State argues that the court did not err in summarily dismissing the petition because defendant’s petition was not supported by the record. The State further argues that defendant failed to show in his petition that the outcome of the trial would have been different.

In a post-conviction proceeding, all issues which could have been presented on direct appeal but were not are deemed waived. (People v. Stewart (1988), 123 Ill. 2d 368, 372, 528 N.E.2d 631.) Defendant’s arguments regarding trial counsel’s representation were matters of record which could have been raised on direct appeal and are therefore waived. (See People v. Jones (1985), 109 Ill. 2d 19, 24, 485 N.E.2d 363.) Nevertheless, an examination of the record indicates that defendant has failed to show that trial counsel’s representation was ineffective.

The standard for evaluating the effectiveness of counsel was first set forth as a two-part test in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and adopted by the Illinois Supreme Court in People v. Albanese (1984), 104 Ill. 2d 504, 525-27, 473 N.E.2d 1246. The Strickland test requires that defendant first show that counsel’s performance was below an objective standard of reasonableness, thus creating a constitutional deprivation. Defendant must also show that his counsel’s deficient performance substantially prejudiced his defense, and 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; People v. Flores (1989), 128 Ill. 2d 66, 80-81, 538 N.E.2d 481.

Defendant first claims that trial counsel was incompetent because he failed to present an expert in handwriting analysis to refute that the ledger admitted at trial contained his handwriting. A claim of incompetency which arises from a matter of defense strategy will not support a claim of ineffective representation. (People v. Madej (1985), 106 Ill. 2d 201, 478 N.E.2d 392.) Counsel’s performance must be evaluated based on the entire record and not on isolated instances of alleged incompetence called into question by defendant. (Flores, 128 Ill. 2d at 107.) An examination of the record indicates that on cross-examination, defendant was asked to compare the handwriting in the ledger to handwriting on personal papers belonging to defendant and his wife, and noted a similarity. The record indicates that the jury was permitted to compare the personal papers with the ledger book during its deliberations. The record further discloses the eyewitness testimony of Ranallo, who saw defendant and his wife make entries in the ledger, and of Officer Pariso, who testified that defendant showed him the ledger book and how he made entries therein. Defendant has not shown that the testimony of a handwriting expert would have altered the outcome of the trial.

Next, defendant contends that he was denied effective counsel because his attorney labored under a conflict of interest. Defendant claims that trial counsel did not vigorously represent him because he feared being sued by defendant regarding an unrelated case.

The prohibition against an attorney serving a client where there is a conflict of interest is based upon the principle that “no man can serve two masters,” and if a defense attorney falls into this category, he may be hindering his client’s sixth amendment right to counsel. (People v. Arnold (1991), 218 Ill. App. 3d 647, 577 N.E.2d 1355; People v. Spreitzer (1988), 123 Ill. 2d 1, 13, 525 N.E.2d 30.) Effective assistance means assistance by an attorney whose allegiance to his client is not diluted by conflicting interests or inconsistent obligations. People v. Washington (1984), 101 Ill. 2d 104, 110, 461 N.E.2d 393.

Where defense counsel has a relationship with a person or entity which would benefit from an unfavorable verdict for the defendant, counsel will be deemed to have a per se conflict of interest making him ineligible to represent defendant in that matter. (Arnold, 218 Ill. App. 3d at 655.) In Arnold, the court found that the fact that defendant filed suit against his defense counsel did not create a per se conflict. The Arnold court, citing People v. Hardeman (1990), 203 Ill. App. 3d 482, 560 N.E.2d 1198, determined that a pending lawsuit did not create the kind of conflict that would preclude counsel from continuing to represent the defendant and satisfy his sixth amendment rights. Arnold, 218 Ill. App. 3d at 656.

Nothing in the present case suggests that defense counsel labored under a per se conflict of interest. The record does not reflect that defendant ever filed a complaint against defense counsel in this case or in any other case. The record, in fact, indicates that defense counsel vigorously represented defendant in that he extensively cross-examined the State’s witnesses, attempting to impeach Ranallo, and to make a case for entrapment by Pariso. Defense counsel represented defendant at the sentencing hearing and argued in mitigation for him. Defense counsel also filed post-trial motions which he argued extensively. Accordingly, defendant has failed to show that defense counsel’s performance was hampered by a conflict of interest.

Finally, defendant argues that his trial counsel failed to move to suppress two propane tanks found in defendant’s home and admitted as evidence at trial. Defendant’s argument has no merit. The decision to file a motion to suppress is a matter of trial tactics which seldom has any bearing on the incompetency of counsel. (People v. Mendez (1991), 221 Ill. App. 3d 868, 873, citing People v. Purnell (1984), 126 Ill. App. 3d 608, 624, 467 N.E.2d 1160.) Defendant has not shown that such a motion would have been granted, nor that the outcome of the trial would have been different had it been granted. Thus, defendant has not fulfilled the second prong of the Strickland test for ineffectiveness of counsel.

Our examination of the record indicates that defendant has failed to show his trial counsel was ineffective. Thus, the trial court correctly dismissed defendant’s petition without a hearing.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.

       A mistrial was declared following defendant’s first trial for delivery of a controlled substance because the jury failed to reach a unanimous verdict.

       In its brief, the State notes that in the trial court’s ruling on defendant’s motion for leave to file late notice of appeal, the trial judge made reference to the fact that defendant had filed a complaint against defense counsel with the Attorney Registration and Disciplinary Committee two years prior to his motion.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND WITT, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—0516
    Opinion filed March 30, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Fred Weil, Alison Edwards, and Rita A. Fry, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Susan R. Schierl, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Raymond Witt, was found guilty of the murder of Zachary Pinquind and sentenced to a prison term of 40 years. On appeal, defendant contends that: (1) his conviction is invalid under the Illinois homicide law for first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1) because the statute was not in effect at the time of the offense; (2) he was denied his constitutional right to a bench trial; (3) he was prejudiced by the prosecutor’s comments regarding flight during opening and closing statements; (4) an instruction to the jury regarding circumstantial evidence was in error; and (5) the trial court erred in allowing certain cross-examination of defense witnesses. For the following reasons, the judgment of the trial court is affirmed.

The record sets forth the following facts relevant to this appeal. Wendell Cain testified on behalf of the State that on April 14, 1987, at 7:45 p.m., he went to Fuzzy’s liquor store, located on the southeast corner of 45th Street and Cottage Grove Avenue, Chicago. Cain was standing at the counter talking, when a man named Glen entered the store and stated that Zachary Pinquind, a Fuzzy’s employee, was involved in an argument outside. Cain went to the back door and looked out toward 45th Street. He saw Pinquind seated behind the wheel of his car, which was parked on the south side of the street, pointed east, and saw three men standing in the street talking to Pinquind. Another car was parked in front of Pinquind’s car.

Cain heard one of the men say, “I will hurt someone about my money,” in an angry tone, and another man say, “[H]ere come those white guys.” Just then, Cain saw a police car heading down 45th Street toward Pinquind’s car and Fuzzy’s. The men around the car walked away.

Cain reentered the store via the front door. Richard Cain, Cain’s brother and the store manager, entered the store and Cain told Richard that Pinquind was arguing outside. Richard asked Cain to go and get Pinquind. Cain approached Pinquind’s car and asked Pinquind to come into Fuzzy’s. Pinquind did not accompany Cain into Fuzzy’s. Richard sent Cain out a second time, and Pinquind said he was on his way. As Cain turned to go back into Fuzzy’s, Pinquind was getting out of his car.

Pinquind walked into the store behind Cain. They both approached the counter, and Richard asked Pinquind what he was doing outside. Cain moved down the counter out of the range of the conversation, approximately 20 feet away.

At that point, defendant entered Fuzzy’s and stood with his back toward the refrigerator at the front of the store. Defendant was watching Richard and Pinquind and he appeared to be angry. His arms were folded and he was moving his head from side to side. Cain stated that the store is brightly lit inside and that he was about the same distance from the refrigerator as from Richard and Pinquind.

After about five minutes, Pinquind left Fuzzy’s and defendant followed him. Cain then left the store. Cain turned to walk east on 45th Street and saw defendant crouched down in front of Pinquind, holding a gun. Pinquind was standing against the wall of the store. Cain saw defendant fire the gun and saw the gun flame. Cain looked down into defendant’s face and defendant looked up at Cain. Cain stated, “I know he saw me.” Pinquind turned to pull away from the wall. Defendant arose from his crouched position and fired at Pinquind a second time. Pinquind jumped.

Cain then went back into the store and shouted to Richard, “someone just shot Zachary.” Richard jumped over the counter and Cain said, “Richard, don’t go out there, they are shooting.” But Richard ran out and Glen ran behind him.

Cain waited a minute, then left the store. He saw Pinquind on the ground, trying to get up. Cain turned to go back into the store to get help and was stopped by a tall, dark man who was blocking the door. The man had one hand in his pocket and was waving his other arm. He said, “You punks better get away from here, don’t nobody mess with anyone in our family.” Cain backed off toward the other side of 45th and Cottage Grove. He heard police sirens and saw the police cars heading toward the scene. The man blocking the door ran toward the alley to the car parked in front of Pinquind’s car. Cain pointed in the direction of the man who was running. He saw defendant run south down the alley. Cain stated that Cottage Grove is a big, well-lit street.

The police car turned east at 45th and Cottage Grove, in the direction of the running man. Cain saw the car that had been parked in front of Pinquind’s car heading south down the alley, followed by the police car. Cain went back into the store and found out that an ambulance had been called.

Cain accompanied police officers to the hospital where Pinquind was transported and later to the police station. At the police station he viewed a lineup. He identified the man who stopped him from reentering the store as Gregory Dixon. Cain did not see defendant in the lineup.

On the afternoon of April 29, Cain viewed police photographs and identified a picture of defendant as the man who had shot Pinquind. Cain signed the back of the photograph. On October 10, at approximately 1:30 a.m., Cain returned to the police station and identified defendant from a lineup.

Chicago police officer Mona Majeed testified on behalf of the State that on April 14, at 9:45 p.m., she investigated the scene of the shooting at 45th Street and Cottage Grove. She found Zachary Pinquind with a bullet wound in his stomach and interviewed Cain. Pinquind was lying with his head facing north and his feet pointed south.

Chicago police officer Guy Habiak testified that on April 14, he began an investigation of Pinquind’s death. He interviewed Cain on April 14 and 29, and conducted the lineups in which Cain identified Dixon and defendant. On October 6, he and Detective Kutz left Chicago for Sacramento, California, to retrieve defendant, who was being held by California authorities pursuant to a Chicago arrest warrant. Habiak returned with defendant in custody on October 9. On cross-examination, Habiak stated that defendant had waived extradition from California. Chicago police detective David Kutz testified to the same essential facts as Habiak.

Cook County medical examiner Mitra Kalekar testified that she performed an autopsy on Pinquind on April 19. Kalekar found that Pinquind had a gunshot wound to his abdomen and she recovered a bullet from his spinal cord. She also found an incision on his right calf. Kalekar determined that Pinquind’s death resulted from the gunshot wound to his abdomen.

Defendant presented alibi witnesses on his behalf. Tyrone Witt, defendant’s brother, testified that he lived with defendant at 4730 South Ingleside, Chicago. On March 28, at approximately 9 p.m., he and defendant attended a birthday party for their brother, Claude Witt, at their sister Doris Armour’s home at 10342 South Eberhart. At that time, defendant took some of his belongings with him to Armour’s home, but Tyrone did not know why defendant did so. Tyrone stated that his whole family was at the party, which lasted until 4 a.m. After the party, Tyrone went straight home, but defendant stayed at Armour’s house. On Sunday morning, March 29, defendant left Chicago for Los Angeles, California. On cross-examination, Tyrone testified that he and defendant grew up together at 4742 South Ingleside, four to five blocks from Cottage Grove Avenue.

Doris Armour, defendant’s sister, testified that on Saturday, March 28, she had a birthday party at her home for her brother Claude. She stated that she invited all of her brothers and sisters to the party. Defendant stayed at her home that night because he was going to leave for California the next morning. Armour stated that she had bought defendant his plane ticket to Los Angeles and gave him $300. On Sunday, March 29, Armour and her husband drove defendant to the Greyhound bus station and he caught a bus at around noon or 12:30.

On cross-examination, Armour testified that she did not know Gregory Dixon and that he did not attend the party. She did not make arrangements for defendant to go to California, she only bought the ticket.

Laura Galvez then gave alibi testimony on behalf of defendant. Galvez stated that she lives in Los Angeles, California, with her family. In April 1987, she was taking a computer terminal operator class in downtown Los Angeles at American Business Institute. She attended school every day for six months and received a certificate in 1988. Galvez first saw defendant on April 2 or 3 at the bus stop. They went to the beach together for a couple of hours and then she went home.

Galvez testified that she met defendant again the next day and saw him every week day thereafter during April 1987. On cross-examination, she stated that she never attended the American Business Institute in Chicago. She also stated that she does not recall anything from her computer course except the keyboard. The jury found defendant guilty of murder. Defendant’s timely appeal followed.

Initially, defendant contends that the amended first degree murder statute was improperly applied in his case. Defendant argues that the indictment against him was void because first degree murder was not an offense at the time of the killing, and thus he was charged retroactively in violation of ex post facto laws. We disagree.

For a law to be applied ex post facto, the statute in question must apply to events occurring before its enactment and it must furthermore disadvantage the defendant affected by it. (People v. Spires (1989), 182 Ill. App. 3d 176, 537 N.E.2d 1010.) For a defendant to be disadvantaged by a statute, it must punish as a crime an act which was previously lawful, increase the penalty for a particular crime or deprive one charged with a crime of a defense that was available under the law at the time the act was committed thereby making conviction easier. People v. Shumpert (1989), 126 Ill. 2d 344, 533 N.E.2d 1106; Spires, 182 Ill. App. 3d at 181.

Prior to July 1, 1987, the State had the burden to prove, beyond a reasonable doubt, the elements of murder. The defendant then had the opportunity to present evidence of a factor in mitigation, serious provocation or unreasonable belief, either of which must have been present to reduce an offense of murder to voluntary manslaughter. (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1(a), (b).) However, the statute was amended defining the offenses of first and second degree murder, and shifting the burden of proof to a defendant, to prove by a preponderance of the evidence, one of the factors in mitigation to reduce an offense of first degree murder to second degree murder. 111. Rev. Stat. 1987, ch. 38, par. 9 — 2.

In People v. Shumpert (1989), 126 111. 2d 344, 533 N.E.2d 1106, the Illinois Supreme Court determined that the amended homicide statute became effective on July 1, 1987. The court examined the language of section 13 of the act, which provided: “This amendatory act of 1986 shall only apply to Acts occurring on or after January 1, 1987, which cause the death of another,” and determined that the language was not straightforward in providing an effective date. The court noted that the Governor did not certify the Act until January 5, 1987, and determined that although the Act was to be applied retroactively from January 1, 1987, such application of the statute violated the constitutional prohibition against ex post facto laws. The court reasoned that the statute would be ex post facto if applied retroactively because it altered the burden of proof for proving second degree murder, decreasing the degree of proof necessary to convict a defendant:

“[T]he new Act not only requires the defendant to come forward with some evidence of a factor in mitigation; it requires the defendant to prove, by a preponderance of the evidence, a factor in mitigation. Furthermore, the State is no longer required to prove, beyond a reasonable doubt, the absence of the factor in mitigation. The Act is therefore ex post facto if retroactive.” (Emphasis in original.) (126 Ill. 2d at 352.)

The court then explained its rationale:

“The cornerstone of the State and Federal constitutional prohibitions against ex post facto laws is that persons have a right to fair warning of the conduct which gives rise to criminal penalties, the degree of punishment and the legal rules of evidence. (People v. Coleman (1986), 111 Ill. 2d 87, 93[, 488 N.E.2d 1009].) Likewise, the cornerstone of the rules governing effective dates of laws is that persons have a right to fair warning of the contents of a bill so as to be given a sufficient opportunity to conform their conduct to the law. (Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 315[, 527 N.E.2d 1264].) The common purpose is to provide persons with fair warning. The Act, if applied retroactively, would violate the State and Federal constitutional prohibitions against ex post facto laws because persons indicted for homicide before the Act actually became effective would not have fair warning of the changes in the law.” (Emphasis in original.) 126 Ill. 2d at 352-53.

Defendant’s reliance on Shumpert is unavailing, as the three conditions determinative of ex post facto application of a law do not apply in this particular case. The record in the present case indicates that defendant’s indictments of October 4, 1987, include the elements of murder as required under the old homicide statute. The indictments charge that on April 14,1987, defendant:

“Committed the offense of first degree murder in that he, without lawful justification intentionally and knowingly shot and killed Zachary Pinquind with a handgun *** and
* * *
He, without lawful justification shot and killed Zachary Pinquind with a handgun knowing that such shooting with a handgun created a strong probability of death or great bodily harm to Zachary Pinquind ***.”

The trial court found that the elements of murder remained the same after the amendment of the homicide statute. Thus, the statute does not punish as a crime an act which was previously lawful.

The record further shows that defendant did not attempt to present an affirmative defense of self-defense or lawful justification to his charge of first degree murder in an attempt to reduce the charge to second degree murder. During pretrial discovery, the State, pursuant to Illinois Supreme Court Rule 413(d) (134 Ill. 2d R. 413(d)), requested that defendant give written notice of any defenses, affirmative or nonaffirmative, which the defendant intended to assert at any hearing or at trial. In his answer, defendant stated that he “may or may not raise the defense of alibi” and supplied the date and location of the alibi. Defendant offered an alibi defense at trial and no other defense prior to or at trial. Thus, the degree of proof was unaltered in this case.

Finally, the jury found that the State had satisfied the elements of murder and proved the defendant guilty of murder beyond a reasonable doubt as required by the law in effect at the time of the offense. (See People v. Snowden (1986), 147 Ill. App. 3d 763, 769, 498 N.E.2d 612.) Contrary to defendant’s arguments, the record does not support a finding that the amended homicide statute defined a new crime, increased the punishment for a previously committed offense or shifted the burden of proof to defendant, thereby detrimentally increasing his burden of proof with regard to murder. See Spires, 182 Ill. App. 3d at 181.

In the present case, defendant’s indictments provided him with fair warning of the elements of murder, and defendant was afforded the opportunity to present his defense. Where the language of the indictment sufficiently informs a defendant of the charges against him, and defendant cannot demonstrate any prejudice resulting from an incorrect statutory citation, the defect is formal and does not warrant reversal. (People v. McBrien (1986), 144 Ill. App. 3d 489, 494 N.E.2d 732.) We find, therefore, that although technically the State cited the improper statute in its indictments, defendant was not prejudiced by the error, and thus the error was harmless. People v. Ryan (1987), 117 Ill. 2d 28, 37, 509 N.E.2d 1001; People v. Weaver (1968), 41 Ill. 2d 434, 437-38, 243 N.E.2d 245, cert. denied (1969), 395 U.S. 959, 23 L. Ed. 2d 746, 89 S. Ct. 2100.

Next, defendant contends that the State asserted its right to a jury trial after defendant requested a bench trial and that he was thus denied his constitutional right to a bench trial.

Every person accused of an offense has the right to a trial by jury unless that right is understanding^ waived by the defendant in open court. (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 6.) It is axiomatic that the waiver of the right to a trial by jury cannot be presumed from a silent record. People v. Villareal (1983), 114 Ill. App. 3d 389, 392, 449 N.E.2d 198.

Defendant argues that, prior to trial, he expressed his desire to be tried by the bench, that the State asserted its right to request a jury trial, and that the court indicated that it would respect the State’s request for a jury “if asserted by the State.” The record indicates that the State never asserted its request for a jury. The trial judge stated: “I will tell you in advance that my inclination is to grant the State’s right to a jury trial *** if they demand a jury trial.” No further proceedings indicate a discussion of a jury or bench trial demand. The record indicates that on December 13, 1988, the following colloquy occurred:

“THE COURT: Okay. Ready for the jury trial?
THE DEFENSE: Yes, Judge.
THE COURT: Okay. Let’s have the jury.”

The record indicates that the issue of a jury versus bench trial was not raised by defendant again until post-trial arguments. At that time, defense counsel admitted that defendant agreed to a jury trial and that no effort was made on behalf of defendant to formally waive a jury. Thus, having not elected to waive trial by jury, defendant was not denied his constitutional right to a bench trial.

Defendant next contends that the prosecutor’s comments during opening statement and closing argument regarding defendant’s flight were improper because the State introduced no evidence at trial showing that defendant was guilty of flight or intentional concealment. In response, the State argues that defendant waived his right to appeal on this issue, as defense counsel failed to both object at trial and raise the issue -with sufficient specificity in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124.) Even if the issue is not waived, we find that the comments were not improper.

A prosecutor is given great latitude in closing argument, and the propriety of his comments is within the trial court’s discretion. (People v. Morrison (1985), 137 Ill. App. 3d 171, 184, 484 N.E.2d 329.) It is well settled that the prosecution has the right to comment on the evidence that has been adduced at trial and make all legitimate inferences therefrom. (People v. Wheatley (1989), 183 Ill. App. 3d 590, 601, 539 N.E.2d 276.) Whether the People’s argument exceeded the bounds of fair comment is to be determined from the totality of the circumstances surrounding the comment. (People v. Jenkins (1989), 190 Ill. App. 3d 115, 135-36, 545 N.E.2d 986.) It is well settled that improper prosecutorial remarks generally do not warrant reversal unless they are so prejudicial as to constitute such a material factor in defendant’s conviction that the jury likely would have reached a contrary verdict had the remarks not been made. (People v. Townsend (1985), 136 Ill. App. 3d 385, 394, 483 N.E.2d 340.) Comments by the prosecution in rebuttal argument that are invited by defense counsel’s closing argument are proper. (People v. Perez (1983), 113 Ill. App. 3d 143, 149, 446 N.E.2d 1229.) Moreover, a defendant is not denied a fair trial where the jury is admonished that the opening and closing statements are not evidence. People v. Thomas (1990), 137 Ill. 2d 500, 530, 561 N.E.2d 57.

Defendant objects to various comments made by the prosecutor during her opening statement and closing argument that defendant fled to California after the shooting. In her opening statement, the prosecutor argued:

“[T]he Defendant had actually left the City of Chicago and he left the State of Illinois and he had fled all the way to California.”

In reliance on People v. Harris (1961), 23 Ill. 2d 270, 178 N.E.2d 291, and United States v. Jackson (7th Cir. 1978), 572 E 2d 636, defendant contends that the prosecutor’s arguments were based upon flight evidence that was not adduced at trial. Defendant’s reliance is misplaced, as these cases do not stand for the proposition for which they are cited. In the present case, evidence of flight was not introduced at trial; rather, the prosecutor’s comments are based upon the evidence adduced at trial that defendant was arrested in California, and that defendant presented an alibi defense that he was in California at the time of the shooting.

At trial, Wendell Cain testified that he saw defendant shoot Pinquind on April 14, 1987, in Chicago, Illinois. Cain testified “I know he saw me.” Through alibi testimony, defendant attempted to establish that he went to California on March 29, 1987, and remained there throughout April 1987. Defendant intended for the jury to infer that he was not in the State of Illinois on the day Pinquind was shot. The State argued that from this same testimony the jury could infer that defendant fled to California because he knew that Cain could identify him.

Defendant also objects to a comment made by the prosecutor in closing argument:

“Mr. Witt was probably at home before Zachary Pinquind ever got to the hospital.”

The record indicates that Tyrone Witt and defendant lived four blocks from the scene of the shooting and that they grew up in the neighborhood. The jury could reasonably infer from the evidence that defendant ran from the scene of the crime to his nearby home.

Defendant further objects to the following comments made by the prosecutor in rebuttal closing argument:

“The waiver of extradition, ladies and gentlemen, does not show anything about the defendant. The only thing it shows is that he knows the police now know that he is wanted for a warrant for murder in Illinois.
* * *
The defendant did go to California, that’s absolutely true, and the defendant went to California, we know he did, because that’s where the police picked him up and brought him back to Illinois. The question is when did he go to California? When did he go to California: Ladies and gentlemen, you’ve heard the testimony of these witnesses about this birthday. How convenient. The end of March. Now we all remember it, right, and the next day we’ll take him to the Greyhound Bus station. He didn’t go the next day, ladies and gentlemen, He went when he got a feeling that the police were on his tail.”

The record indicates that defense counsel argued in closing that the jury should infer from defendant’s waiver of extradition that he was innocent of any wrongdoing:

“Now, if he was guilty, do you think he would have waived extradition? He could have. That was his right. They would have to prove, there are certain things that they have to prove before a person is extradited to another State. No, he didn’t want that. He wanted his name cleared. *** Well, the fact that he waived extradition you can draw your inference. He didn’t fight extradition. They’re talking about flight now. A person, if you had fled from here, he is not going to waive extradition.”

The prosecutor’s comments were invited by the comments of defense counsel. Thus, the prosecutor’s comments amount to fair comment on the evidence adduced at trial. In light of an eyewitness identification and the overwhelming evidence against defendant, any error by the prosecution in opening and closing statements was harmless.

Next, defendant argues that he was denied a fair trial because the trial court included a jury instruction regarding circumstantial evidence where only direct evidence was presented at trial. The State responds that defendant failed to properly preserve this issue for review and that it is therefore waived under People v. Enoch. Even if the issue were not waived, we find that there was circumstantial evidence in the present case and thus the jury was properly instructed.

Circumstantial evidence is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. People v. Rhodes (1981), 85 Ill. 2d 241, 248-49, 422 N.E.2d 605.

Defendant argues that State’s witnesses presented only direct evidence testimony without the necessity for inference or presumption. However, the record discloses numerous instances of circumstantial evidence. For example, the record indicates that Wendell Cain saw defendant fire the first shot toward Pinquind’s legs and the second shot as defendant was rising from his crouched position. The medical examiner testified that she found an incision on Pinquind’s calf and a gunshot wound in Pinquind’s abdomen. From this evidence, the jury could infer that these wounds were caused by the two shots fired by defendant.

Further, Cain testified that Pinquind was standing upright facing north and was in the process of turning away when defendant fired the second shot. Officer Majeed testified that Pinquind was discovered on his back with his head facing north. From this evidence, the jury could infer that the force of the second shot continued the momentum of Pinquind’s turn and that his body landed in that direction. The record indicates that no weapons were discovered on the scene. The jury could thus infer that defendant carried the gun with him when he escaped from the scene. Because there was ample circumstantial evidence in the present case, the trial court correctly instructed the jury on circumstantial evidence.

Finally, defendant contends that the trial court permitted improper cross-examination of the defense witnesses thereby prejudicing his case. The State responds that defendant’s objections are waived by defendant’s failure to both object at trial and raise the alleged error in his motion for new trial. (Enoch, 122 Ill. 2d at 186.) We agree, but even so find that cross-examination of the witnesses was proper.

The scope of cross-examination is within the sound discretion of the trial court and a reviewing court should not interfere unless there has been a clear abuse of discretion resulting in manifest prejudice to the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 269, 478 N.E.2d 267.) While cross-examination is limited to the scope of direct examination, circumstances may develop on cross-examination that lie within the knowledge of the witness which explain, qualify, discredit or destroy his direct testimony, even though that material may not have been raised on direct examination. People v. Franklin (1990), 135 Ill. 2d 78, 97, 552 N.E.2d 743.

Defendant first argues that the prosecutor’s question to Doris Armour, defendant’s sister, regarding Gregory Dixon’s presence at the birthday party she had at her house on March 28 tied Dixon to the defendant and attacked Armour’s credibility. In reliance on People v. Braggs (1988), 184 Ill. App. 3d 756, 540 N.E.2d 767, defendant contends the question created improper insinuation allowing the jury to substitute presumption for proof because the State presumed facts not in evidence as a precursor to impeachment of that witness, and then failed to introduce rebuttal evidence impeaching her testimony.

Defendant’s reliance is misplaced because the the question was properly based on the evidence presented at trial. Wendell Cain testified that at the scene of the shooting Dixon blocked his entry to Fuzzy’s and told him, “You punks better get away from here, don’t nobody mess with anyone in our family.” On direct examination, Armour testified that her immediate and extended family and her close friends attended the birthday party. The question was proper since Armour would know whether Dixon was a family member who attended the party.

Lastly, defendant argues that the prosecutor’s line of questioning to Laura Galvez on cross-examination regarding where she attended business school and what she learned in a computer course constituted impeachment on an irrelevant and collateral matter. On cross-examination, the prosecutor asked Galvez if she ever attended the American Business Institute in Chicago, and Galvez responded that she did not. The prosecutor then asked her to describe the various parts of a computer learned in her course, and she stated that she learned the keyboard.

The cross-examiner is permitted to delve into the witness’ story to test the witness’ perceptions and memory. (People v. Sandoval (1990), 135 Ill. 2d 159, 174, 552 N.E.2d 726.) The partiality of a witness is subject to exploration at trial and is always relevant as discrediting the witness and affecting the weight of his testimony. (135 Ill. 2d at 174.) Generally any permissible kind of impeaching matter may be developed on cross-examination. (People v. Collins, 106 Ill. 2d at 269.) The purpose of impeaching evidence is to destroy the credibility of a witness. (People v. Bradford (1985), 106 Ill. 2d 492, 499, 478 N.E.2d 1341.) However, the cross-examiner may not impeach a witness on a collateral matter, which is a matter that can not be introduced for any purpose other than to contradict the witness. Collins, 106 Ill. 2d at 270.

Galvez testified that she spent every weekday during the month of April 1987 with defendant. When she met defendant and throughout the time she dated him, Galvez testified that she was attending a six-month computer terminal operator training course at the American Business Institute in Los Angeles, California. Galvez also testified that she visited her family in Chicago. Defendant contends that Galvez’ response that she did not recall anything from the class except for the keyboard does not disprove that she dated the defendant while he was in California.

However, the prosecutor’s line of questioning properly tested Galvez’ memory, credibility, and her possible motive or bias regarding events that occurred during the period of time she allegedly spent with defendant in California. Moreover, defendant fails to cite authority showing how this line of questioning prejudiced his case. Therefore, the trial court properly allowed the prosecutor’s questions on cross-examination.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

BUCKLEY, P.J., and MANNING, J„ concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODNEY BANKS, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—1204
    Opinion filed March 30, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Cheryl K. Lipton and Karen E. Tietz, Assistant Public Defenders, of counsel), for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Guy L. Miller IV, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

In the late evening of November 8, 1987, Chicago police officers sought entry into an apartment in a Cabrini-Green public housing building on Sedgwick Street with a search warrant based on reports that illegal narcotics were being sold from the unit. When entry was refused, the officers forced their way in.

Defendant Rodney Banks was one of five individuals present in the apartment. Subsequently, he was charged under section 401 of the Illinois Controlled Substances Act (Act) with possession of heroin and cocaine with intent to deliver (Ill. Rev. Stat. 1987, ch. 561k, pars. 1401(b)(2), (c)). He was convicted of separate offenses relating to those substances and was sentenced to a prison term of seven years.

We affirm in part, reverse in part, and remand.

At trial, the State established its case against defendant primarily through the testimony of the arresting officers.

Officer Virgil Jones stated that, as he and other officers entered the apartment, defendant and two of the other individuals present, Tony Stearns and Vincent Thurman, were throwing numerous plastic-wrapped items out of a window. The officers recovered several such packages from the floor area by the window where defendant “had moved away from.” In court, Jones identified the packages recovered by identifying them as the contents of the police narcotics evidence envelope in which the packets were placed.

Officer Ronald Stieben testified that, from his position at the door of the apartment, he also saw defendant and two other individuals throw several items out of the window. Stieben saw defendant drop similar-looking items to the floor. Stieben variously described what defendant threw out of the window as a package or many packages which were “floating” about.

Officer Merel E. Brown, too, saw defendant throw items out of a window and to the floor. Brown recounted, in detail, the procedure used to inventory the items recovered. Brown stated he, himself, had recovered nine items from the floor where defendant had dropped them, putting them in his pocket to keep them separated from the other items recovered.

At the approximate time the officers forced their entry, Officer Eric Davis, who was positioned outside of the building in an area beneath the windows of the apartment, observed defendant throw a plastic bag to the ground. The bag contained numerous packages containing a brown powder. Davis returned with the bag to the apartment, identifying defendant as the individual he had seen throwing the bag out of the window.

In all, 69 small, sealed, clear plastic packets, containing 9.78 grams of a brown powder, and nine packages, containing 2.7 grams of a white powder, were recovered. Tests performed on samples showed the brown powder to be heroin and the white powder to be cocaine.

The police also recovered $300 in cash from defendant.

In his defense, defendant presented the testimony of Stearns, Thurman, Ladidrea Richmon, and Marva Roland to establish that defendant’s presence in the apartment was fabricated by police. The witnesses stated that defendant had actually been forced into the apartment by the police when they entered.

Defendant here argues that he was not proved guilty beyond a reasonable doubt. That argument is primarily based on a contention that the officers’ testimony was inconsistent in describing the items recovered. Defendant also argues the evidence failed to establish the requisite intent to deliver the illegal narcotics.

We conclude the evidence sufficiently supported a finding of guilt. Although the officers used different terms to describe the recovered items containing heroin and cocaine, the use of varying terms can provide no consolation to defendant. Testimony was provided at trial detailing a proper chain of evidence, and the items about which the State provided testimony were admitted into evidence for the jury’s consideration.

The elements of the crime of unlawful possession of narcotics with an intent to deliver were established by the testimony of the arresting officers. (See People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.) Both Jones, who was positioned outside the apartment building, and Stieben, who was with the officers who entered the unit, testified that they saw defendant throw items out of a window. Those items were later determined to contain a controlled substance. Testimony also established that defendant dropped several other similar items to the floor where he was standing. That testimony would permit a rational trier of fact to conclude defendant had knowledge of the presence of illegal narcotics and that illegal narcotics were in defendant’s immediate control or possession. (See People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) The element of intent was supported by evidence showing the combination of drugs, the manner they were packaged and kept, and the cash recovered from defendant. See People v. Marshall (1988), 165 Ill. App. 3d 968, 521 N.E.2d 538, appeal denied (1988), 119 Ill. 2d 567, 522 N.E.2d 1252; People v. LeCour (1988), 172 Ill. App. 3d 878, 527 N.E.2d 125, appeal denied (1988), 123 Ill. 2d 563, 535 N.E.2d 407.

Alternatively, defendant argues he cannot stand convicted separately of possession of both heroin and cocaine with the intent to deliver because the convictions arose from the same set of circumstances.

We agree. In People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200, our supreme court directed that the simultaneous possession of more than one type of controlled substance constitutes a single act for which there can be but one conviction. The appellate court consistently has applied that rule in cases involving facts similar to those at issue here. (See People v. Love (1991), 222 Ill. App. 3d 428, 584 N.E.2d 189.) Therefore, on remand, one of defendant’s two convictions for possession of a controlled substance with intent to deliver must be vacated.

Parenthetically, we note that an exception to that rule has been recognized where the particular controlled substances simultaneously possessed give rise to offenses under separate statutory enactments. For example, separate convictions based on the simultaneous possession of a substance containing cannabis and of a substance containing cocaine have been held to be proper because both the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 56V2, par. 704) and the Illinois Controlled Substances Act are implicated in the single act of possessing both substances. (People v. Tovar (1988), 169 Ill. App. 3d 986, 523 N.E.2d 1178, appeal denied (1988), 122 Ill. 2d 590, 530 N.E.2d 260; see also People v. Morrison (1988), 178 Ill. App. 3d 76, 532 N.E.2d 1077, appeal denied (1989), 126 Ill. 2d 564, 541 N.E.2d 1112.) In those cases, a legislative intent to define the offenses by the nature of the substance possessed is therefore evident.

Although the State finds a similar legislative intent is manifested in the Illinois Controlled Substances Act, itself, by the designation of particular types and amounts of substances covered, we disagree. Enumeration of the different types of substances in the Act serves only to define what is to be considered a controlled substance. It is the conduct of possessing one or more of the substances which gives rise to an offense under the Act. The amounts of the substances designated simply provide a means to classify the type of punishment for that possession. The State’s argument, which seeks to have separate offenses under the Act defined by the substance possessed, is more properly directed to the General Assembly, not to the appellate court.

Defendant also complains that certain remarks made by the State, during closing and rebuttal argument, deprived him of a fair trial. Acknowledging his failure to specifically raise that issue in his post-trial motion, defendant nevertheless urges us to consider his argument because, he contends, his counsel was ineffective in that respect.

No reason exists to excuse the failure to specifically raise the issue by way of a post-trial motion as required under People v. Enoch (1988), 122 Ill. 2d 176, 52 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274, to preserve the issue for review. Our supreme court has recently reiterated the general rule that the failure to bring a motion or to object to portions of closing arguments does not establish incompetent representation. (People v. Pecoraro (1991), 144 Ill. 2d 1, 578 N.E.2d 942.) For those reasons, we decline to disturb defendant’s convictions with regard to comments made by the State.

Affirmed in part; reversed in part and remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.