text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD L. SHARP, Defendant-Appellant.
    Fifth District
    No. 5-87-0257
    Opinion filed June 16, 1989.
    Rehearing denied July 18, 1989.

      V. Robert Matoesian, of Granite City, for appellant.
    Dick Allen, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Donald L. Sharp, appeals from an order of the circuit court of Madison County sentencing him to 30 months’ probation, with the first 12 months being intensive probation, seven consecutive days in the county jail, to attend alcohol treatment as recommended by the Department of Probation, to serve 18 months of periodic imprisonment in the Madison County jail with credit for time served and to pay decedent’s widow a minimum of $600 per month for five years as restitution. In this cause, defendant raises the following issues: (1) whether the trial court abused its discretion in ordering defendant to pay $600 per month as well as 50% of any overtime earnings for five years to the victim’s spouse as restitution; (2) whether the trial court erred in admitting evidence at the sentencing hearing that the victim was killed; and (3) whether the sentence of 18 months’ periodic imprisonment was excessive.

Because the instant case rests upon defendant’s plea of guilty, we take our facts from the probation report and the sentencing hearing. In the early morning of July 10, 1985, a motorcycle driven by Charles Wiley, victim, was struck from behind by an auto driven by defendant. The accident occurred on Illinois Route 111. Defendant stopped at the scene for a brief time, reentered his vehicle, and left the scene. Defendant then abandoned his car and “popped” the ignition so as to make it look as though his vehicle had been stolen. Defendant then reported to the Pontoon Beach police department that his car had been stolen. The victim, Charles Wiley, age 56, was hospitalized with injuries and subsequently died. Defendant was identified as the driver on July 12, 1985, by a witness to the accident. Defendant initially stated that he had no knowledge of the fatal accident. He then admitted that he had not seen the motorcycle before he hit it. He stated that he stayed at the scene until someone arrived, but panicked and left the scene.

Defendant was originally charged by the State with failing to file an accident report within 48 hours of an accident involving personal injury or death. (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 401(b).) On November 13, 1985, defendant pleaded guilty and after a sentencing hearing was sentenced to 30 months’ probation, the first 12 months to be. intensive probation, to pay decedent’s widow $50,000 as restitution, to serve 18 months’ periodic imprisonment in the Madison County jail, and to receive alcohol and drug testing and/or counseling as required. On March 24, 1986, defendant filed a motion to withdraw his guilty plea, which was granted on July 1, 1986. On October 11, 1986, the State filed an amended information charging defendant with two counts of reckless homicide (Ill. Rev. Stat. 1985, ch. 38, par. 9— 3(a)), failure to report a motor vehicle accident involving personal injury or death (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 401(b)), driving while license revoked (111. Rev. Stat. 1985, ch. 95^2, par. 6 — 303(a)), and failure to decrease speed to avoid an accident (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 601(a)). On December 1, 1986, defendant pleaded guilty to failure to report an accident, driving while license revoked, and failure to decrease speed to avoid an accident. In exchange for defendant’s plea of guilty, the State dismissed the two counts of reckless homicide. Defendant was then sentenced to 30 months’ probation with the first 12 months to be intensive; seven consecutive days’ incarceration for driving while license revoked; to attend alcohol treatment as recommended by the Probation Department; to serve 18 months of periodic imprisonment with credit for time served; to pay $600 per month for five years to the victim’s widow as restitution; and if defendant had an opportunity to work overtime, to pay 50% of these net earnings as additional restitution to the victim’s widow.

Defendant’s first issue on appeal is whether the restitution order was an appropriate exercise of judicial discretion. Specifically, defendant argues that the trial court abused its discretion in ordering defendant to pay $600 per month as well as 50% of any overtime earnings for five years to the victim’s spouse. Defendant submits that restitution can only be ordered for the named victim’s funeral expenses and medical bills and further contends that the trial court was wrong to consider the victim left a widow who was deprived of a husband and support.

The restitution order was made pursuant to section 5 — 5—6(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—6(b)), which states, in pertinent part:

“(b) In fixing the amount of restitution to be paid in cash, the court shall allow credit for property returned in kind, for property damages ordered to be repaired by the defendant, and for property ordered to be restored by the defendant; and after granting such credit, the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and such other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of the defendant, and insurance carriers who have indemnified the named victim or other victims for such out-of-pocket expenses, losses, damages, or injuries, provided that in no event shall restitution be ordered to be paid on account of pain and suffering.”

The term “victim” is defined by section 5 — 1—22 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 1—22) as having “the meaning ascribed to it in subsection (a) of Section 3 of the Bill of Rights for Victims and Witnesses of Violent Crime Act. [Ill. Rev. Stat. 1987, ch. 38, par. 1403.]” Therein, the term “victim” is defined as including “the spouse, parent, child or sibling of a person killed as a result of a violent crime perpetrated against the person killed.” (Ill. Rev. Stat. 1987, ch. 38, par. 1403(a)(3).) A violent crime is defined as “any felony in which force or threat of force was used against the victim or any misdemeanor which results in death or great bodily harm to the victim.” (Ill. Rev. Stat. 1987, ch. 38, par. 1403(c).) Under these definitions, we find that Charles Wiley’s spouse qualifies as a victim of a violent crime.

Defendant’s actions were the cause of Charles Wiley’s death. Defendant’s driving while his license was revoked, a Class A misdemeanor, and failure to reduce speed to avoid an accident, another Class A misdemeanor, can be considered violent crimes inasmuch as had defendant not been driving and had defendant reduced his speed and avoided the accident, the victim would not have been hit from behind and killed. Moreover, a review of the House of Representatives floor debate on the bill (House Bill 67 (1983)) which amended sections of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1003 — 1—1 et seq.) makes it clear that it was the legislative intent to allow victims not named in a complaint to receive restitution. Having decided that decedent’s spouse is a victim under Illinois law, we must now consider whether the trial court’s order of $600 per month plus 50% of any overtime defendant works for five years is justified under section 5 — 5—6(b) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005— 5 — 6(b)).

Trial courts are given wide discretion to determine the penalty appropriate to the circumstances of each case. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) In the instant case, the statute under which restitution was ordered provides for “actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and such other victims who may also have suffered” but fails to define these terms. We find no Illinois precedent to guide us in this matter.

At the first sentencing hearing, there was testimony by decedent’s eldest stepson concerning decedent’s income prior to his death.

“THE COURT: What was your father’s earnings?
A. The last — Well, my father was a machinist. Good Lord. That’s — With the children my father never really spoke that much about his money. My Mom had something about some taxes from the year before on my dad, and I think they was somewhere that particular year my father made thirty-two thousand dollars. Now, that was two years ago.”

This was the extent of any discussion of decedent’s income. No tax forms were introduced into evidence. As to decedent’s spouse, there was some testimony that she was forced to quit her job after her husband’s death due to illness:

“Q. Okay, Mrs. Wiley, how much were you making on at your place of employment?
A. I drew five dollars and ten cents an hour. It had cleared at three hundred and eighty-nine dollars every two weeks.
Q. Okay.
A. So it was about four hundred. I don’t know. I know I cleared three hundred and eighty-nine dollars every two weeks every other Friday.
Q. And have you talked to your doctor about returning to work?
A. And he said no.
Q. Okay. Not ever?
A. Not at this time, no.
Q. Okay. Has he given you any hopes in maybe going back?
A. No, he said — See, I was in housekeeping, and we had such an area. I couldn’t keep up with it.
Q. Okay.
A. I have asthma and I don’t get enough oxygen in my body that I have to stop and catch my breath all the time.
Q. Okay. Now, was the reason that you had to stop working was in part due to your asthma?
A. That’s when it affected me. The morning I got sick I just started crying. I couldn’t quit.
Q. Well, did you have asthma before then?
A. No, I never had it before.
Q. Oh, and when did this occur, mam?
A. In November about two weeks before Thanksgiving.
Q. How long after the accident?
A. Well, my husband passed away July 10th.”

At the close of the testimony after the first sentencing hearing, the trial court ordered defendant to pay decedent’s widow $50,000 in restitution. The court stated:

“And finally you will make restitution to Mrs. Wiley in the amount of fifty thousand dollars, and I want it clear that that does — is not an indication of this court’s evaluation of their loss in terms of economic matters only. There can be no restitution ordered by me as a judge for the grief that they suffer as a result of the loss of Mr. Wiley. So that that is not a part of this at all. But neither is the fifty thousand dollars restitution I am ordering any indication in my mind as to the economic loss only. As Mr. Matoesian [defense counsel] pointed out in his cross-examination there may well be a civil suit filed as a result of Mr. Wiley and what happens in that case is not before me, and at this point I obviously have no control over them. This fifty thousand dollars that I am ordering you to pay as a condition of your probation is only in my judgment partial and not in any way replace the loss in terms of economics only.”

In March 1986, defendant withdrew his guilty plea and was subsequently recharged by the State. The State and defendant then reached the plea agreement previously described. In conjunction with the plea agreement, defendant agreed to pay decedent’s widow $250 per month for five years as reparation. However, in the second sentencing hearing, the judge reiterated that this order of restitution was inadequate in view of decedent’s salary, but had to also consider that defendant had to fulfill his own basic needs. The trial court then ordered defendant to pay decedent’s widow $600 per month for five years plus half of any overtime earnings for a minimum of $36,000.

After a close examination of the sentencing transcript, we are unable to determine how the trial court arrived at its award of restitution to decedent’s widow. There was testimony as to funeral bills totalling $3,600 and medical bills totalling approximately $14,500 by decedent’s stepson. The probation report stated that decedent’s funeral bills totalled only $3,150. The lost earnings of decedent and decedent’s widow were far from proven under proper evidentiary rules. Moreover, decedent’s widow’s lost wages were not proven to be a result of her husband’s death. There was no medical testimony connecting her asthma to the death of her husband.

As we indicated earlier, this is a case of first impression. The general purpose of the Code of Corrections is to rehabilitate the offender, if possible, and to restore him to useful citizenship. (Ill. Rev. Stat. 1987, ch. 38, par. 1001-1-2; People v. Mahle (1974), 57 Ill. 2d 279, 312 N.E.2d 267.) We are concerned that in the instant case, the probation system is not being used for rehabilitative purposes, but comes close to imposing civil liability. In interpreting California’s restitution statute, the California Supreme Court stated:

“Disposing of civil liability cannot be a function of restitution in a criminal case. To begin with, the criminal justice system is essentially incapable of determining that a defendant is in fact civilly liable, and if so, to what extent. *** A party sued civilly has important due process rights, including appropriate pleadings, discovery, and a right to a trial by jury on the specific issues of liability and damages. The judge in the criminal trial should not be permitted to emasculate those rights by simply declaring his belief that the defendant owes a sum of money.” People v. Richards (1976), 17 Cal. 3d 614, 620, 552 P.2d 97, 101, 131 Cal. Rptr. 537, 541.

The Michigan Supreme Court, in People v. Becker (1957), 349 Mich. 476, 489, 84 N.W.2d 833, 839, pointed out the weakness of such a practice. In striking down a probation condition requiring a defendant convicted of leaving the scene of an accident to pay the medical expenses of the pedestrians he hit, the court declared:

“The liability *** is fixed by the [trial] court. How? Is it by a trial in open court, upon pleadings, defining the claims and issues, with the taking of testimony under oath, confrontation of witnesses, cross-examination, and an assertion of defenses, including that of contributory negligence? Clearly not. It was determined, says the court, ‘from my investigation.’ ” (349 Mich, at 489, 84 N.W.2d at 839.)

Members of our own General Assembly voiced such concern over changes to the restitution statute (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—6(b)) attempting to impose civil liability without due process as evidenced by the following colloquy on House Bill 67 during floor debate:

“Greiman [Representative from Cook County]: Does the defendant have a right to have a jury determine how much the value of the items are for which there’s been a loss or alleged loss?
Hawkinson [Representative from Knox County]: *** Mr. Greiman, that is not presently the law, nor would it be under this bill. However, as we have under the present Law when there is a dispute as to restitution, the prosecutor, through testimony elicited from the victims, still must prove that up in front of the Judge and the Judge makes the determination. That burden of proof and the procedure would not change under this Bill.
Greiman: Well, so how do we deny the defendant his constitutional right to have a jury determine that? Don’t you believe that he has a constitutional right in a civil matter, essentially civil?
Hawkinson: No. Under the present law, this determination is made only after a conviction or a finding of guilty for which, of course, he has the right to jury, but there is not right to determination of that, except in those instances where the value is determinative of whether it’s a misdemeanor or a felony.” 83d Ill. Gen. Assem., House Proceedings, April 7, 1983, at 53-54 (statements of Representatives Greiman & Hawkinson) (House Bill 67).

Defendant’s liability to the decedent’s widow cannot be based merely on the trial court’s belief that defendant owes her some compensation. Since defendant pleaded guilty to failure to reduce speed to avoid an accident, he did admit liability. However, there was no duty placed on him, nor could it be placed on him, during a sentencing hearing to prove that he was not civilly liable. It may in fact be that the State can prove “actual loss” by decedent’s wife up to and beyond the restitution ordered by the court; however, we find no evidence that the minimum limits imposed by the trial court were proven up by the State. This court is not disputing that substantial economic loss was suffered by the victim’s family as a result of this tragic incident. The problem is that the testimony in the present action failed to prove the economic loss suffered as a result of the offenses.

The General Assembly clearly intended to allow more victims to recover under section 5 — 5—6(b) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—6(b)) and to allow such victims to recover more. However, in the case before us, the restitution order is defective. It was made absent the due process rights assured to every litigant. We reverse and remand the restitution order of the trial court requiring defendant to pay $600 per month plus 50% of his net earnings on any overtime. Upon remand, defendant is entitled to at least minimal discovery rights including, but not limited to, interrogatories and depositions in order to determine the victims “who may have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5— 6(b).) The parties may agree to stipulate to the amount of loss proximately caused by defendant’s conduct, yet this will not bind the trial court to allow restitution only for an agreed-upon amount. All trial courts are afforded broad powers to enforce discovery rules and discovery orders under Supreme Court Rule 219 (107 Ill. 2d R. 219). The trial court should take an active role in this discovery process to ascertain losses suffered by the decedent’s wife.

Defendant’s second issue on appeal is whether the trial court erred in admitting evidence at the sentencing hearing that the victim was killed. Defendant argues that because he did not plead guilty to reckless homicide or murder, it was prejudicial to admit evidence at the sentencing hearing that defendant’s conduct resulted in death to the victim. Defendant cites no law for this argument.

An appellant has a positive duty to support each point made in its appeal with contentions, citation of authorities, and references to pages of the record. Without such, the point is considered waived. (Piper v. Moran’s Enterprises (1984), 121 Ill. App. 3d 644, 459 N.E.2d 1382; 113 Ill. 2d R. 341(e)(7).) Assuming, arguendo, that defendant did not waive this point, we find that it was not error for the trial court to admit evidence that defendant’s conduct resulted in the death of the victim. Defendant pleaded guilty to failure to report an accident involving personal injury or death within 48 hours. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 401.) In order to meet the elements of this charge, it must be proven that the victim did suffer personal injury or die as a result of defendant’s conduct. Therefore, it was not prejudicial to defendant that the State argued that defendant died. Additionally, rigid adherence to usual rules of evidence is not required at a sentencing hearing. (People v. Wallace (1988), 170 Ill. App. 3d 329, 524 N.E.2d 677.) The trial court may search anywhere within reasonable bounds for facts which tend to aggravate or mitigate the offense. (170 Ill. App. 3d 329, 524 N.E.2d 677.) We find the argument by the State that this was negligent homicide was within the reasonable bounds of factors in aggravation. The trial court did not err in considering the fact that the victim died.

We turn next to defendant’s final argument that the 18-month periodic imprisonment sentence was excessive. Defendant maintains that this sentence is severe compared to similarly situated defendants in Madison County.

All penalties must be determined both according to the seriousness of the offense and with the objective of restoring the citizen to useful citizenship. (Ill. Const. 1970, art. I, §11; People v. Branham (1985), 137 Ill. App. 3d 896, 902, 484 N.E.2d 1226, 1231.) It is also true, however, that the primary responsibility for striking the proper balance between these two factors rests with the trial court. (People v. Crosser (1983), 117 Ill. App. 3d 24, 32, 452 N.E.2d 857, 864.) As a reviewing court, we will reduce a sentence only where it constitutes a substantial departure from the fundamental spirit and purpose of the law and is an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

In the instant case, the sentencing court was aware that defendant drove his car into the rear of a motorcycle, causing the victim to be thrown from the motorcycle. Defendant stopped his car, exited, looked at the body of the victim from some distance, and left the scene. Defendant then abandoned his vehicle some distance from the accident site after “popping” the ignition to make it appear as though the car had been stolen. Defendant failed to notify the authorities of his involvement in the accident within 48 hours, as required by law. Defendant called the Pontoon Beach police department apparently while in an intoxicated condition and informed the dispatcher that his automobile had been stolen from his apartment’s parking lot. Defendant had a prior history of drunken driving and illegal transportation of alcohol. In fact, defendant’s driver’s license had been revoked two months prior to the time when he struck and killed the motorcyclist. The trial court had ample evidence before it of defendant’s prior convictions involving alcohol and the implication of continued alcohol abuse. Based on these facts, we cannot say that defendant’s sentence of 18 months’ periodic imprisonment was an abuse of discretion.

For the foregoing reasons, this court affirms in part and reverses in part the judgment of the circuit court of Madison County, and remands for further proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part.and remanded.

WELCH, P.J., and HARRISON, J., concur.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    H.K. WARNER et al., Plaintiffs-Appellants and Cross-Appellees, v. JAMES E. LUCAS, Defendant-Appellee and Cross-Appellant.
    Fifth District
    No. 5-87-0769
    Opinion filed June 21, 1989.

      Thomas Y. Pearson, of Kenney & Pearson, of Springfield, for appellants.
    Edward W. Huntley, of Holley, Keith & Huntley, of Springfield, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiffs, Harold K. Warner and his wife, Betty, appeal from the judgment imposed against them by the circuit court of Montgomery County in their action against defendant, James Lucas. We reverse in part and affirm in part.

The Warners entered into an installment sales contract with Lucas on September 28, 1983, for the sale of their stock in the State Bank of Farmersville. Lucas agreed to buy the Warners’ 757 shares of stock at $90 per share for a total of $68,130. Upon execution of the contract, Lucas was to pay $100, and then on January 2, 1984, make a payment of $20,030, followed by five equal annual installments toward the remaining balance, plus interest of 10% per year. In exchange, the Warners agreed to place the stock in escrow to be delivered to Lucas pro rata as he made the required payments. Lucas was also to receive all cash or stock dividends the shares would earn while in escrow as well as the Warners’ proxy to vote the shares. Lucas made only the first two payments totaling $20,130. He failed to make the January 1985 payment because of personal financial difficulty. And, by August 9, 1985, the bank was closed by regulatory agencies. Lucas refused to make the remaining payments. The Warners filed suit requesting the balance due, $48,000, plus accrued interest, for a total of $60,637 on the basis of breach of contract. Lucas answered with the affirmative defense that he had been defrauded and filed a counterclaim for the return of all money paid. The jury found in favor of Lucas on the Warners’ complaint and in favor of the Warners on Lucas’ counterclaim. The Warners filed a motion to set aside the verdict against them, which the trial court denied, and then this appeal.

The Warners argue on appeal the verdict in favor of Lucas on their complaint for breach of contract is against the manifest weight of the evidence. They believe that not only did they prove all the elements of their complaint, namely the existence of the contract, compliance with their obligations under the contract and Lucas’ lack thereof (see Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 296, 408 N.E.2d 1014, 1020), but also that Lucas failed to prove fraud by clear and convincing evidence. We must agree with the Warners’ contentions. Clearly Lucas’ breach of contract was established. The only real issue was Lucas’ claim of fraud.

In general, courts will not interfere with contracts to which parties have agreed unless there existed at the time the contract was entered into a defect, such as fraud, in the negotiation process. (See Dana Point Condominium Association, Inc. v. Keystone Service Co. (1986), 141 Ill. App. 3d 916, 920, 491 N.E.2d 62, 66.) In order to constitute fraud which would invalidate a contract, a false statement of material fact known or believed by the maker to be false must have been made with the intent to induce another to act and must have been reasonably believed and justifiably relied upon by the other party to his detriment. (See Tan v. Boyke (1987), 156 Ill. App. 3d 49, 54, 508 N.E.2d 390, 393; Central States Joint Board v. Continental Assurance Co. (1983), 117 Ill. App. 3d 600, 604, 453 N.E.2d 932, 935. See also Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 161, 510 N.E.2d 409, 413.) Fraud also may consist of the intentional omission or concealment of a material fact under circumstances creating an opportunity and duty to speak. (See Tan, 156 Ill. App. 3d at 54, 508 N.E.2d at 393; Wright v. Richards (1986), 144 Ill. App. 3d 450, 457, 494 N.E.2d 1269, 1274; Central States, 117 Ill. App. 3d at 604, 453 N.E.2d at 935.) Without the presence of fraud in the negotiation process, however, a contract will be enforced as written. A contract cannot be set aside merely because the agreement later turns out to be a bad bargain for one of the parties. (Dana Point Condominium, 141 Ill. App. 3d at 920, 491 N.E.2d at 66.) The evidence at trial here simply did not establish fraud so as to invalidate the stock transaction between the Warners and Lucas.

The Warners and Lucas entered into their contract in September 1983. Mr. Warner had retired from active involvement in the management of the State Bank of Farmersville in 1978, and by the summer of 1983, he and his wife were permanent residents of Florida. The Warners decided to sell their stock because of their retirement to Florida and contacted Lucas because his family already owned 8% to 10% of the bank’s stock. Mr. Warner believed Lucas would be a good director for the bank and testified he would not have sold him the stock if he felt the bank was in trouble. The Warners made no representations as to the financial condition of the bank and both parties independently determined the stock was worth $90 per share. More importantly, no information available to either party suggested the bank was in financial difficulty in September of 1983. The latest FDIC report from March of 1983 gave the bank a rating of two on a one-to-five scale, the same rating the bank had always received. Few, if any, banks received a superior one rating. While the report also indicated the bank’s loan-to-deposit ratio was too high at 71%, the bank made efforts to liquidate its more marginal loans, thereby reducing the ratio to 57% at the close of 1983. The bank’s percentage of classified loans was close to its historic norm, no major loans were classified, and the percentage of classified loans ruled losses was unchanged. Moreover, at the time the contract was entered into, Mr. Warner was unaware the bank’s profit and loss statement for 1983 would show a profit some $150,000 less than that for 1982. The net earnings were approximately the same; the funds had been allocated to increase the reserve for possible loan losses. Finally, Lucas admitted at trial Mr. Warner’s testimony that the bank was sound at the time of their contract was “an honest opinion.” Lucas failed to prove by clear and convincing evidence that the Warners possessed meaningful information unknown to Lucas which they deliberately concealed with the intent to induce Lucas to enter the contract. Moreover, there was no fiduciary or any other legal relationship between the Warners and Lucas giving rise to a duty to speak (see Central States, 117 Ill. App. 3d at 607-08, 453 N.E.2d at 937), nor was there any evidence of justifiable reliance on the part of Lucas, a major stockholder in the bank (see Zimmerman, 156 Ill. App. 3d at 167, 510 N.E.2d at 416-17; Central States, 117 Ill. App. 3d at 606-07, 453 N.E.2d at 936-37). Unfortunately, the contract turned out to be unprofitable for Lucas, but that is the nature of and the risk involved in stock trading. The contract, which was validly entered into, must be enforced as written. We therefore have no choice but to reverse the verdict in favor of Lucas and remand for entry of judgment in favor of the Warners on their complaint. Likewise, we necessarily affirm the judgment in favor of the Warners on Lucas’ complaint.

Lucas cross-appeals arguing the trial court erred in denying him on substantive grounds leave to file an amended answer and counterclaim asserting the affirmative defenses of commercial frustration and the doctrine of impossibility. While it is true that at any time prior to a final judgment, amendments may be allowed on just and reasonable grounds (see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(a)), the court need not allow an amendment which accomplishes nothing (see Bowman v. County of Lake (1963), 29 Ill. 2d 268, 281-82, 193 N.E.2d 833, 840). (See also Cvengros v. Liquid Carbonic Corp. (1981), 99 Ill. App. 3d 376, 379, 425 N.E.2d 1050, 1053.) Simply stated, neither the doctrine of impossibility nor commercial frustration is an applicable defense in this instance. Both defenses are extreme exceptions to the fundamental rules that a validly entered contract is to be enforced as written, and as such, are not to be applied liberally. (See Smith v. Roberts (1977), 54 Ill. App. 3d 910, 913, 370 N.E.2d 271, 273; Olson v. Carbonara (1959), 21 Ill. App. 2d 69, 71-72, 157 N.E.2d 273, 275.) More importantly, however, not only did Lucas receive the value of the Warners’ performance in that he received dividends and voting rights on the stock for two years but also the failure of a corporation is a reasonably foreseeable possibility. (See Olson, 21 Ill. App. 2d at 72, 157 N.E.2d at 275-76.) The buying and selling of stock for investment purposes by nature carries much risk. An agreement to buy or sell such stock cannot be avoided simply because that risk is realized. As one court stated: “Changing and shifting markets and prices from multitudinous causes is endemic to the economy in which we live. Market forecasts by supposed experts are sometimes right, often wrong, and usually mixed. If changed prices, standing alone, constitute a frustrating event sufficient to excuse performance of a contract, then the law binding contractual parties to their agreements is no more.” (Northern Illinois Gas Co. v. Energy Cooperative, Inc. (1984), 122 Ill. App. 3d 940, 952, 461 N.E.2d 1049, 1059.) We also note that although worthless, the subject matter of the contract here, the shares of stock in the bank, still are in existence. We therefore find no abuse of the trial court’s discretion in denying Lucas’ motion to amend his answer and counterclaim.

For the aforementioned reasons, we reverse the judgment of the circuit court of Montgomery County in favor of Lucas on the Warners’ complaint and remand for entry of judgment in favor of the Warners, and we affirm the denial of Lucas’ motion to amend and affirm the judgment in favor of the Warners on Lucas’ complaint.

Reversed and remanded in part; affirmed in part.

CHAPMAN and HOWERTON, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACK G. BRUCE, Defendant-Appellant.
    Fifth District
    No. 5-87-0410
    Opinion filed June 21, 1989.

      James J. Gomric, P.C., of Belleville, for appellant.
    Dick Allen, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

On March 19, 1987, a jury in the circuit court of Madison County found the defendant, Jack Bruce, guilty of two counts of murder in violation of section 9 — 1(a)(1) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(1)), home invasion in violation of section 12 — 11(a)(2) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 11(a)(2)), and attempt (murder) in violation of section 8 — 4 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 4). The court entered judgment on the jury’s verdicts, and on May 8, 1987, the court sentenced the defendant to two terms of natural-life imprisonment and to two terms of 30 years’ imprisonment. All sentences were ordered to be served concurrently. The defendant appeals. We affirm.

On May 1, 1986, shortly after 9 a.m., the bodies of Carl and Susan Hoffman were discovered by Richard Jasudowicz and Earl Davis, co-workers at Carl Hoffman’s realty company, at the Hoffmans’ home in Granite City, Illinois. Each victim had been shot three times in the head and stabbed numerous times in the chest. The body of Carl Hoffman was found upright on the couch in the living room, near a knife stained with blood. Susan Hoffman’s- body was found on the floor in front of the couch. Forensic evidence indicated that the victims had been killed sometime during the previous evening and that the assailant had fired the shots at a distance of about one foot from each victim’s head.

The co-workers discovered the bodies subsequent to their becoming concerned when neither Carl nor his wife appeared for work. Upon telephoning the Hoffman residence, a co-worker spoke with Jennifer Seago, the five-year-old daughter of Susan Hoffman. In that conversation, the child indicated that she could not wake her mother or her stepfather and that her mother had been hurt. The two co-workers drove to the Hoffman home and were let into the residence by Jennifer. The co-workers discovered the bodies and also detected the strong odor of gas throughout the home.

Emergency medical technicians, fire personnel, and the police shortly arrived at the scene. They discovered that all of the controls on the gas range had been turned on to their maximum, and that a candleholder had been set on a table in the kitchen. A burned match lay at the base of this candleholder, and a puddle of wax indicated that the holder had recently contained a candle which had melted.

The police observed that the front door of the home was locked, while the back door of the home had been forced open. The police found glass around the back door, shell casings and the bloodstained knife in the living room, and other bloodstains near the rear door of the house and in the basement. Outside of the home, in the muddy area near Jennifer Seago’s bedroom window, the police observed that someone had left an impression of the heel of a shoe revealing the letters “FLO.” The police took blood samples and lifted fingerprints from the scene, and subsequently performed ballistics tests on the shell casings and on the bullets removed from the bodies of the deceased.

The Granite City police department contacted the Major Case Squad of the Greater St. Louis Area (MGS), who interviewed dozens of individuals bearing any relationship to the Hoffmans. On May 2, 1986, Terry May, an officer with the Granite City police department, interviewed the defendant. The defendant indicated that Carl Hoffman had sold some property for him and that he and Hoffman had often played cards together.

At 3 p.m. on May 3, 1986, Officer May contacted the defendant and requested that he come to the Granite City police station for another interview. Shortly afterwards, at approximately 3:07 p.m., the police were advised to proceed to the defendant’s home because the defendant had just been shot. Upon arriving at the defendant’s home, Steve Willaredt, a Granite City police officer, observed that the defendant was lying near his driveway, had been wounded in the stomach, and was in apparent pain. As an ambulance prepared to take the defendant to the hospital, Willaredt requested the defendant to give him the keys to his home. The defendant consented. Less than an hour later, Officer May, working independently at the hospital, also received the defendant’s consent to search his residence, and received his consent to search his vehicles at approximately 4:10 p.m.

Upon entering the home subsequent to the consent, Alva Busch, a crime scene technician, examined a pair of dirt-covered gray shoes found in the living room. Upon noticing that the shoes were manufactured by Florsheim, and recalling that the shoe impressions found on the broken glass and in the mud at the Hoffmans’ home had the same design configuration, Busch replaced the shoes and ordered the officers to leave the home.

The police subsequently obtained a warrant to search the defendant’s home. The search revealed numerous items which were later introduced in evidence at the defendant’s trial, including: (1) a door knob, found in an adjacent field, that apparently came from the Hoff-mans’ back door; (2) a gold-colored key, found in the defendant’s bathroom, which apparently fit a lock on the door of the Hoffmans’ home; (3) a crowbar allegedly used to break open the Hoffmans’ back door, and which revealed paint scrapings that matched the paint found on the door; (4) bullets; and (5) an empty box which once contained a gun which the police suspected, and which subsequent ballistics tests on similar weapons confirmed, could have been used as the murder weapon.

Apparently not convinced of the defendant’s claim of having been shot by unknown assailants, the police uncovered substantial evidence in support of the suspicion that the defendant had inflicted the wound upon himself in an effort to mislead the authorities. The defendant’s next-door neighbor, Connie Busch, related that 5 to 10 minutes before the officers had arrived at the defendant’s home, she was in her garden, heard hammering noises, and saw the defendant kneeling near a black bag at the rear of his home. The police found a gun hidden in a bag of peat moss near where the defendant, according to Connie Busch, had been kneeling. The police also found a spent shell casing outside of the defendant’s front door. The ballistics of this casing matched the ballistics of the gun found in the peat moss.

The police arrested the defendant on May 8, 1986, and the defendant was indicted on May 14, 1986. On July 21, 1986, the circuit court entered an order granting a trial continuance to August 25, 1986. The defendant’s attorney signed his name to this order. At a docket call on August 20, 1986, for cases scheduled for trial on August 25, 1986, the defendant’s attorney failed to appear. On August 25, 1986, both the assistant State’s Attorney and the counsel for the defendant met with the trial judge concerning the trial of the case. The defendant’s attorney informed the judge that he would confer with the defendant as to the suggested trial date of October 13, 1986, and return with an answer on September 2, 1986. At the docket call on September 2, for cases set for trial September 8, the defendant’s attorney appeared and announced that he would submit a formal motion for a continuance. However, soon afterwards, the defendant’s attorney telephoned the assistant State’s Attorney and stated that he would not request a continuance. As a result, the assistant State’s Attorney, on September 8, 1986, filed a “Motion to Declare Delay Attributable to the Defendant.” On September 9, 1986, the defendant’s attorney filed a response and a petition for habeas corpus relief requesting the defendant’s discharge and the dismissal of the case for not having been tried within 120 days of the defendant’s arrest.

After hearing arguments on September 9, 1986, the circuit court denied the defendant’s request for discharge. The court determined that two periods' of delay, from July 21 to August 25, 1986, and from August 25 to September 8, 1986, were attributable to the defendant. The defendant was in custody 75 days from incarceration on May 8, 1986, to July 21, 1986; 36 days from July 21 to August 25 (inclusive); and 14 days from August 25 to September 8 (exclusive of September 8). In its order of September 11, 1986, the trial court found that the 36-day delay from July 21 to August 25, 1986, was attributable to the defendant because his attorney had specifically requested that continuance and had signed an order to that effect. The trial court also attributed the 14-day delay between August 25 and September 8, 1986, to the defendant because the court noted that, on August 25, 1986, the defendant’s counsel had agreed to a trial date of October 13, 1986, but had failed to notify the court until the first week of September that this date was not acceptable. The court found that the remaining delay did not exceed 120 days and that the defendant was thus not denied his right to a speedy trial.

Prior to the trial of the defendant, the court also denied the defendant’s motion to suppress evidence gathered from an alleged improper search of his premises, and granted the State’s motion to prevent the defendant from in any way mentioning or discussing the Hoffmans’ alleged use and dealing of drugs.

The jury found the defendant guilty, the court sentenced him, and he filed this appeal. The defendant contends on this appeal that: (1) the trial court erred by denying his motion for discharge for the violation of his right to a speedy trial; (2) the trial court erred in not allowing defendant’s counsel to inquire as to the alleged drug connection and criminal activity of the Hoffmans or the Hoffmans’ family members; (3) the trial court erred in not suppressing evidence seized from the defendant’s residence obtained from an alleged unlawful search; and (4) the State failed to prove the defendant’s guilt beyond a reasonable doubt.

The defendant initially contends that the circuit court erred by denying his motion for discharge for the violation of his right to a speedy trial. The defendant claims that the court should have dismissed the charges against him on statutory speedy trial grounds because none of the delay prior to September 9, 1986, was attributable to him. The defendant suggests, in addition, that he did not personally request a continuance.

Section 103 — 5(a) of the Code of Criminal Procedure of 1963 (the speedy trial statute) (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5(a)) prescribes that “[e]very person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant.” In determining whether delay was “occasioned by the defendant,” the criterion in each case is whether the defendant’s acts in fact caused or contributed to the delay. (People v. Fosdick (1967), 36 Ill. 2d 524, 528-29, 224 N.E.2d 242, 246.) When a defendant’s attorney fails to appear in court at the appointed time, the resulting delay is attributed to the defendant. (People v. Scotti (1985), 131 Ill. App. 3d 571, 573, 475 N.E.2d 1097, 1099.) A defendant need not be present in person when his counsel requests a continuance because he was present by and through his attorney, and his attorney’s request for a continuance constitutes a delay attributable to the defendant. People v. Siglar (1971), 49 Ill. 2d 491, 496, 274 N.E.2d 65, 68.

The police arrested the defendant on May 8, 1986, and the defendant was in custody at all times subsequent to that date. It is not contested that the first 75 days of delay until July 21, 1986, were not attributable to the defendant. On July 21, 1986, the trial court entered an order granting a continuance of the trial to August 25, 1986. Circuit Judge P.J. O’Neill subsequently testified that Jim Gomric, the defendant’s attorney, had orally requested the continuance and that the defendant’s attorney acknowledged that the continuance was on the defendant’s motion by signing his name at the bottom of the order.

After hearing arguments of counsel on September 9, 1986, the trial court denied the defendant’s request for discharge. The court determined that two periods of delay, from July 21 to August 25, 1986, and from August 25 to September 8, 1986, were attributable to the defendant. It attributed the 36-day delay from July 21 to August 25, 1986, to the defendant because the evidence indicated that defense counsel had specifically requested a continuance. It attributed the 14-day delay between August 25 and September 8, 1986, to the defendant because the evidence indicated that defense counsel had agreed to a trial date of October 13, 1986, but had failed to notify the court until the first week of September that this date was not acceptable. The court noted that the remaining delay, which it attributed to the State, did not exceed 120 days, and that the defendant was thus not denied a speedy trial.

The record clearly supports the trial court’s conclusion that sufficient delay was occasioned by the defendant so as to negate his claim for violation of his right to a speedy trial. According to Judge O’Neill, the judge who granted the continuance, defense counsel orally requested a continuance in July of 1986 and signed an order to that effect. The resulting 36-day delay from July 21, 1986, to August 25, 1986, was thus correctly charged to the defendant. The fact that the defendant’s attorney requested the continuance, rather than the defendant himself, is of no consequence. (Siglar, 49 Ill. 2d at 496, 274 N.E.2d at 68.) The remaining delay did not exceed 120 days, and the defendant’s right to a speedy trial was not violated.

The defendant’s second assignment of error is that the trial court erroneously excluded testimony tending to show that another person committed the crimes charged to the defendant. Defense counsel sought to inquire as to the alleged drug connection and criminal activity of the Hoffmans in an attempt to show “the actual cause and perpetrator of this offense.” On March 12, 1987, the trial court granted the State’s motion in limine to exclude specific testimony as to whether the victims were involved with drugs and whether they may have been murdered by someone also involved with drugs. The defendant contends that the court should have admitted this evidence because it was relevant to prove the proposition that someone other than the defendant had murdered the Hoffmans.

A defendant in a criminal case may prove any facts or circumstances tending to show that another committed the crime with which he is charged. (People v. Dukett (1974), 56 Ill. 2d 432, 450, 308 N.E.2d 590, 600, cert. denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226.) However, if the evidence is too remote or too speculative (People v. Thomas (1986), 145 Ill. App. 3d 1, 13, 495 N.E.2d 639, 647), or if it fails to link a third person closely with the commission of the crime (People v. King (1978), 61 Ill. App. 3d 49, 52, 377 N.E.2d 856, 859), then the trial court should exclude the evidence. The trial court’s determination whether to admit the proffered evidence is within its sound discretion, and the court on review will not reverse this determination absent a clear showing of an abuse of that discretion. People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702.

In People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590, the defendants, father and son, were convicted of the armed robbery and murder of a service station attendant and were sentenced to death. At trial, the defendants attempted to offer evidence that a third party, one James Basford, had threatened the murder victim on a number of occasions several months prior to the victim’s death. The defendants also sought to introduce the testimony of a police officer that, in the weeks following the crime, Basford had asked the officer about the investigation several times and had asked whether he had been cleared of suspicion. The trial court refused to allow the evidence. After receiving their sentences of death, the defendants took a direct appeal to the Illinois Supreme Court.

That court affirmed, observing that there was nothing in the proffered testimony of either Basford or the police officer that directly connected Basford with the victim’s shooting. The court stated that, at most, the evidence tended to show that Basford and the victim disliked each other and that Basford was concerned that he would be charged with the crime. (Dukett, 56 Ill. 2d at 449, 308 N.E.2d at 600.) The court noted that the defendant’s evidence was properly excluded because it concerned evidence entirely speculative in character. Dukett, 56 Ill. 2d at 450, 308 N.E .2d at 600.

Similarly, in the instant case, the trial court properly exercised its discretion when it granted the State’s motion and rejected the defendant’s offer of proof. The defendant failed to specifically identify any other person who may have murdered the Hoffmans. The defendant’s offer of proof, in which he mentioned hearsay evidence which the MGS gathered during their initial investigation of the murders — rumors circulating through the community that several named individuals may have disliked the Hoffmans — indicates that if the court had permitted the defendant to present evidence of the Hoffmans’ drug use, the defendant would have suggested that other people had held grudges against the Hoffmans or may have had reasons to want them killed. This evidence clearly was uncertain and remote and thus had little, if any, probative value for the issues in the case.

A trial is not an arena in which the contestants are permitted to fling any and all accusations, no matter how remote or absurd. Some limits of admissibility must exist. “[Tjhere is another test of admissibility than logical relevancy. Some things are rejected as being of too slight a significance, or as having too conjectural and remote a connection; others, as being dangerous, and likely to be misused or overestimated by a jury; others, as being impolitic, e.g., unsafe for the State; others, on the bare ground of precedent.” (Thayer, Presumptions & the Law of Evidence, 3 Harv. L. Rev. 141, 145 (1889).) If trial courts were required to permit defendants to introduce evidence concerning a remote or nonspecific possibility that others may have committed the crimes charged, trials could go on ad infinitum and juries could become hopelessly confused with speculative evidence. (People v. Thomas (1986), 145 Ill. App. 3d 1, 13, 495 N.E.2d 639, 647.) Here the trial court correctly exercised its discretion and excluded the evidence “because it would have been entirely speculative in character” (People v. Dukett (1974), 56 Ill. 2d 432, 450, 308 N.E.2d 590, 600), and thus too conjectural and remote.

The defendant cites Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, apparently for the proposition that the exclusion of the evidence deprived him of due process. In Chambers, the defendant was convicted of the murder of a policeman. The defendant proffered the testimony of three witnesses who would have said that one Gable McDonald had admitted to each witness that he was guilty of the murder charged to the defendant. The Mississippi trial court excluded the testimony on the grounds that it was hearsay and inadmissible under any exception recognized in that State. The Mississippi Supreme Court affirmed the trial court.

The United States Supreme Court reversed, holding that enforcement of the hearsay rule in this instance denied the defendant’s right to due process. In so concluding, the Court found sufficient indications of trustworthiness in the underlying circumstances surrounding McDonald’s admissions. For example, the evidence disclosed that each of the three witnesses was a close associate of McDonald and that McDonald had made the damaging remarks spontaneously. In addition, the witnesses were corroborated by other facts — including a sworn (although subsequently repudiated) confession by McDonald, testimony of an eyewitness putting McDonald at the crime scene, proof that McDonald owned a gun similar to the weapon used, and evidence that McDonald was seen with the gun just after the shooting — which gave credence to the asserted veracity of the hearsay. Finally, the Court noted that McDonald was present and available for the prosecution to call to the stand if it so chose. In circumstances “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers, 410 U.S. at 302, 35 L. Ed. 2d at 313, 93 S. Ct. at 1049.

The distinction between Chambers and the instant case is obvious. In Chambers, the defendant could present specific probative evidence tending to prove that some other specific person was the perpetrator of the crime. In the instant case, the defendant was unable to specifically identify any other person who may have murdered the Hoff-mans. The evidence that the defendant wanted to present to the jury consisted of highly speculative rumors, uncorroborated, which circulated throughout the community subsequent to the murders. In Chambers, the Supreme Court noted that the suspect’s, McDonald’s, availability strengthened its conclusion that McDonald’s admissions were reliable, because “if there was any question about the truthfulness of the extra-judicial statements, McDonald was present in the courtroom and had been under oath. He could have been cross-examined by the State, and his demeanor and responses weighed by the jury.” (Chambers, 410 U.S. at 301, 35 L. Ed. 2d at 312, 93 S. Ct. at 1049.) In the instant case, the third-party suspect was not only unavailable, he or she was undisclosed, and the question is thus posed as to whether that suspect even exists.

One final comment on this issue: our role in reviewing decisions of the trial court is a limited one. We must uphold the trial court absent a clear showing of an abuse of discretion. (People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702.) The trial court granted the State’s motion and excluded the defendant’s offer of proof because the defendant failed to specifically identify a suspect to whom the evidence would clearly point as the murderer, and because the defendant’s theory was entirely speculative hearsay, derived from unnamed persons, and irrelevant to any of the issues at trial. In this instance, we are unable to hold that the trial court’s determination to exclude this evidence was an abuse of its discretion.

The defendant’s third contention on this appeal is that the trial court erred by not suppressing evidence seized from the defendant’s residence which resulted from an allegedly unlawful search. The police initiated their search on May 3, 1986, after the defendant summoned them to his home in regards to a shooting. While the wounded defendant was waiting for an ambulance, Officer Willaredt discovered that the defendant’s house was locked. The officer asked the defendant for the key, and the defendant gave it to him. Less than an hour later, at the hospital, Officer Terry May asked the defendant for permission to search his house and vehicles. The defendant consented.

Alva Busch, a crime scene technician, supervised the search of the defendant’s house. While inside the home, Busch noticed a pair of dirt-covered shoes in the living room. Upon inspecting these shoes, Busch observed a design on the heel similar to that of a design found on broken glass and in the mud at the Hoffmans’ home. Busch ordered the officers to halt the search. The officers then obtained a warrant, and all subsequent searches of the defendant’s house were made pursuant to the warrant. The police seized numerous items from the defendant’s home, including: (1) a door knob; (2) a gold-colored key; (3) a crowbar; (4) bullets; and (5) an empty box which had once contained a Jennings pistol.

In his motion before the trial court, the defendant argued that Busch and the other officers searched his home in violation of his fourth amendment constitutional rights. The court denied the defendant’s motion because it found that the defendant consented to the search of his home. The items seized from the defendant’s home were admitted as evidence during the trial.

Unreasonable searches and seizures are prohibited under the fourth amendment to the United States Constitution (U.S. Const., amend. IV) and article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, §6). A search that is conducted pursuant to consent is one of the specifically established exceptions to the requirements of both a warrant and probable cause before a police search, and a search conducted with a defendant’s valid consent is permitted so long as the State can establish that the consent was given voluntarily. (People v. Koniecki (1985), 135 Ill. App. 3d 394, 401, 481 N.E.2d 973, 979.) Where the validity of a search rests on consent, the State must prove by a preponderance of the evidence that the defendant’s consent was voluntary, and the voluntariness of the defendant’s consent depends, not on any single criterion, but on all circumstances surrounding the giving of the consent. (People v. Posey (1981), 99 Ill. App. 3d 943, 947, 426 N.E.2d 209, 212, cert. denied (1982), 456 U.S. 993, 73 L. Ed. 2d 1289, 102 S. Ct. 2276.) The defendant must give his consent voluntarily, and not as the result of duress or coercion. (People v. Sommer (1977), 45 Ill. App. 3d 459, 461, 359 N.E.2d 1190, 1191.) The trial court must determine as a factual matter whether the defendant has given his consent in the particular case, and where the evidence on the issue is in conflict, the review court will accept the trial court’s finding unless that finding is clearly unreasonable. People v. Anderson (1976), 42 Ill. App. 3d 1040, 1042, 356 N.E.2d 1076, 1078.

In the case at bar, the trial court concluded that the defendant voluntarily consented to the searches of his house both when he gave his keys to the officers and later while he was in the hospital. From the testimony contained in the trial transcripts, the court’s determination was clearly not unreasonable.

Prior to the shooting at his home, and at all times relevant to his argument on this issue, the defendant was not in custody. Officer Willaredt testified that the defendant voluntarily gave him the keys to his house. Officer May also testified that the defendant, at the hospital, voluntarily consented to the search of his house and vehicles. Before this search, the defendant was not a suspect in the murders, and the officers’ apparent purpose in requesting the search was to investigate the defendant’s shooting. Since the defendant had said that he was shot at the entrance to his home, that home could have contained evidence of the shooting. The defendant had asserted that he had grabbed the assailant’s gun, and the police apparently hoped to find the gun, or the shell casing, or the assailant’s fingerprints, inside the home. Obviously, any of these items would have aided in the assailant’s identification. The evidence fails to suggest that the police coerced the defendant’s consent or that the defendant was under duress when he gave the consent. On the contrary, Officer May’s testimony indicates that the defendant willingly cooperated with the police in order to convince them that he had nothing to hide. Since the trial court’s determination that the consent was voluntary was not clearly unreasonable, we must affirm the court on this issue.

The defendant’s final contention on this appeal is that the jury’s guilty verdicts were contrary to the manifest weight of the evidence. The rule is that when presented with a challenge to the sufficiency of the evidence, it is not the function of the court on review to retry the defendant. As the United States Supreme Court observed in Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789, “this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) The Court subsequently noted that “[o]nce a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” (Emphasis in original.) Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; see also People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.

The State’s proof that a defendant committed an offense may be established entirely by circumstantial evidence. (People v. Williams (1977), 66 Ill. 2d 478, 484, 363 N.E.2d 801, 804.) In such cases, the proof of circumstances need only be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused, and no one else, committed the crime. (Williams, 66 Ill. 2d at 484-85, 363 N.E.2d at 804.) Further, the jury need not be satisfied beyond a reasonable doubt as to each link in the chain of evidence, and it is sufficient if all the evidence, taken together, satisfies the jury of the defendant’s guilt beyond a reasonable doubt. (Williams, 66 Ill. 2d at 485, 363 N.E.2d at 804.) Proof of guilt beyond a reasonable doubt does not mean proof beyond any possibility of a doubt. Williams, 66 Ill. 2d at 485, 363 N.E.2d at 804.

In the instant case, no eyewitnesses are alive who will testify who murdered the Hoffmans. The issue on review before this court is whether the surrounding circumstantial evidence is so strong as to negate all reasonable hypotheses of innocence and leads only to the conclusion that the defendant committed the crimes charged. (Williams, 66 Ill. 2d at 484, 363 N.E.2d at 804; see also People v. Guest (1986), 115 Ill. 2d 72, 85, 503 N.E.2d 255, 260.) We hold that it is.

At trial, William Davis, a neighbor of the Hoffmans, testified that he had returned home from work between 11:30 and 11:45 p.m. on the evening of the murders and had nearly struck a light-blue Cadillac as it departed from the victims’ house. The neighbor testified that the defendant’s light-blue Cadillac, depicted in People’s exhibit No. 78, was similar to the car that he saw. Pearl MacElroy, a woman employee of a liquor store located less than a mile from the victims’ house, and a person who had known the defendant for years, stated that the defendant had entered the liquor store to purchase a package of cigarettes at 11:35 p.m. on the evening of the murders. She was certain of the time because she glanced at the clock when the defendant entered the store, and knew that she would begin closing the store in 15 minutes.

The State also presented expert testimony that paint found on a crowbar seized at the defendant’s residence and paint found on the defendant’s shoes matched paint found on the victims’ back door, and that a glass chip discovered in the defendant’s shoe matched glass found on the victims’ back door. David Peck, a forensic scientist, testified that one of the defendant’s shoes definitely made the prints found on pieces of broken glass taken from the floor of the Hoffman home. The design on the defendant’s shoe also matched a shoeprint found in the mud outside the child Jennifer Seago’s window at the Hoffman home.

Richard Waeltermann, a farmhand employed by the defendant, recalled that, on the day of the murders, the defendant returned from Central Hardware with a box of ammunition, and Waeltermann subsequently heard what he thought were shots coming from the defendant’s barn. Waeltermann saw nothing unusual about the defendant’s arms on the day of the murder, but when he reported for work two days later he noticed cuts on one of his arms. Dr. Obert Lay, a surgeon who treated the defendant on May 3, 1986, also observed these cuts on the defendant’s right arm, which he estimated had been on the defendant’s arm from 24 hours to five days. Blood found near the Hoffmans’ back door revealed that the assailant had probably cut himself on the broken glass from the door. From the evidence of the cuts on his right arm, the assailant who had cut himself on glass at the Hoffmans’ on the night of the murders could have been the defendant.

The position of the bodies at the time of the murders leads to an inference that the assailant was someone known to the Hoffmans who was already present in the home at the time of the shootings. If the assailant had entered the home by breaking open the back door, the Hoffmans would have undoubtedly heard the noise and would not have remained on the couch watching television. We also note, from various cosmetic items found near her body, that Susan Hoffman had been removing fingernail polish from her fingers at the time of her violent death, and it is not likely that she would have continued this activity while someone was breaking open her back door. It could also be deduced that after shooting and stabbing the Hoffmans, the assailant had broken open the back door as a ruse, to mislead the police into believing that the murders were the result of a robbery attempt.

The evidence also indicates that the defendant shot himself in the abdomen after the police contacted him to come down to the station and make a statement. The officers who responded to the defendant’s call found the defendant near his driveway. The defendant stated that two men had visited his home at the front door and when he saw that one of the men had a gun, he grabbed for it and the gun discharged. The defendant’s next-door neighbor testified, however, that 5 to 10 minutes before the officers arrived, she was in her garden and saw the defendant kneeling by a black bag on his back porch. She heard several noises that she thought were hammering noises and did not look up. She saw no one else around the defendant’s house. Later that day, a police officer found a .22 caliber pistol hidden in a bag of peat moss at the rear of the defendant’s house. The ballistics of a shell casing found on the concrete porch at the front of the defendant’s house matched the ballistics of the gun found in the peat moss.

Under these circumstances, the defendant’s self-inflicted wound indicates that he feared that the police suspected him of the murders and that he hoped to dispel that suspicion by showing that he too was a victim, rather than a perpetrator. At the least, it evinces that the defendant was consciously aware of his guilt and tried to cover it up.

The State advanced two possible motives at trial for the defendant’s killing of the Hoffmans. First, the evidence indicated that the defendant had lost thousands of dollars playing cards with Carl Hoffman. The defendant had told his girlfriend, Connie Dennis, that he suspected that Carl Hoffman had cheated him and that he would eventually avenge his losses. In addition, after the defendant was unable to obtain financing to purchase a house in Granite City, Carl Hoffman agreed to help him purchase the house, but Carl arranged to have title placed in his own name. According to Dennis, the defendant “was very upset *** he thought Carl Hoffman was trying to double deal him, and trying to stab him in the back.”

In summary, the circumstantial evidence that surrounded the murders — including laboratory analyses of the spent projectiles and cartridges, the defendant’s crowbar, the glass found on his shoes and the paint found on the crowbar and the shoes, the Florsheim shoes that matched prints found on the broken glass and in the mud at the scene of the murder; testimony that the defendant had owned a gun which could have fired the bullets that killed the victims and that he had an injury to his arm that could have been caused by breaking the glass in the victims’ back door; and the overwhelming evidence which indicated that the defendant had shot himself in the abdomen in an effort to redirect the investigation away from himself — proved beyond a reasonable doubt that the defendant, and no one else, murdered the Hoffmans. This evidence was thus clearly sufficient for a rational jury to conclude, beyond a reasonable doubt, that the defendant was guilty of the Hoffman murders.

On this appeal the defendant also disputes his conviction for the attempted murder of the child Jennifer Seago. The person who murdered the Hoffmans attempted to create an explosion and a fire at the Hoffmans’ home to conceal any evidence of the Hoffmans’ violent deaths. The assailant turned on the gas on the stove and placed a lighted candle in the living room. The resulting gas build-up and explosion would have probably immolated the Hoffmans’ bodies, and would almost certainly have killed the child sleeping in her bedroom. The defendant contends that the evidence failed to indicate that the perpetrator of the offense ever saw, had contact with, or even knew that Jennifer was present in the home during the murders. The defendant, however, was an acquaintance of the Hoffmans, and must have known that Jennifer, Susan Hoffman’s child from her first marriage, lived with the Hoffmans. The heel print found outside Jennifer’s window indicates that the defendant paused by that window and viewed the child in her bed. Since the defendant must have known that Jennifer was present inside of the home, the evidence, sufficient to find the defendant guilty of murder, is also sufficient to find him guilty of the attempted murder of the child.

The jury also found the defendant guilty of home invasion, and the defendant disputes that verdict. The statute proscribing home invasion, section 12 — 11(a)(2) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 11(a)(2)), states that “[a] person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and *** [ijntentionally causes any injury to any person or persons within such dwelling place.” The parties stipulated that the defendant was not a peace officer. The defendant apparently entered the Hoffmans’ home with permission and with authority, but later exceeded that authority when he shot and stabbed the Hoffmans. (See People v. Hudson (1983), 113 Ill. App. 3d 1041, 1045, 448 N.E.2d 178, 181.) We are thus unable to say that the jury was irrational in finding the defendant guilty of home invasion.

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

Affirmed.

WELCH, P.J., and GOLDENHERSH, J., concur.