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People v. Behm





APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.


Following a jury trial, defendant, Robert Behm, was found guilty of aggravated kidnapping and armed robbery. (Ill. Rev. Stat. 1969, ch. 38, pars. 10-2, 18-2.) He was thereupon sentenced to a term of two to six years imprisonment. On appeal defendant contends that the trial court erred by improperly admitting certain preliminary hearing testimony into evidence against him.

At a preliminary hearing held on November 15, 1971, Walter Bonk testified on direct examination that a week earlier he had driven a Willard Company van which contained cases of cigarettes. The van was cut off by an automobile as Bonk traveled south on Cottage Grove Avenue near Glenwood-Dyer Road in Cook County, Illinois. Although Bonk could not identify the make or model of the automobile, he said there were two men in the car. The passenger in the automobile, who wore a ski mask, forced Bonk out of the company van at gunpoint. He was then pushed into the trunk of the automobile where he remained for approximately 40 to 45 minutes.

Bonk's cross-examination at the preliminary hearing immediately followed his direct examination. That cross-examination, in its entirety, is as follows:

"Q. Mr. Bonk, you can't identify anybody that was there when you were put in the trunk can you?

A. No.

[Defense counsel].: I have no further questions.

The witness: No chance.

[Defense counsel]: I have no further questions, Your Honor."

Bonk was hospitalized for a heart ailment in June of 1974 and died shortly thereafter. The case proceeded to trial on September 12, 1974, at which time defendant objected to the admissibility of Bonk's testimony offered at the preliminary hearing. The testimony was eventually read into the record.

Two employees of the county highway department, Frank Grupp and Louis Caffarelli, were present on the day of the abduction. As they proceeded northbound on Cottage Grove Avenue in their truck, Grupp saw a Cadillac and a van traveling south. When the Cadillac and van pulled over to the shoulder, Caffarelli noticed that there were two men in the Cadillac and one in the van. Grupp and Caffarelli continued traveling in their truck for a block or two when they stopped to pick up some debris on the roadside. While picking up the trash, they saw three men standing behind the Cadillac. The trunk of the Cadillac was open. Grupp and Caffarelli returned to their truck, and Grupp observed that the trunk lid of the Cadillac was closed and only two men remained nearby.

The highway workers then turned their truck around and headed south on Cottage Grove Avenue. Both the Cadillac and the van had returned to the road and were driving south. When the two vehicles approached a stop sign, Grupp copied their license plate numbers. Caffarelli drove then to a gas station where he flagged down a State trooper, Edward Mehmel. After receiving the information and the license numbers from Caffarelli, Mehmel relayed the message to police units in the area.

Corporal Charles Helsel of the Illinois State Police heard the broadcast and then saw two vehicles which matched the description. Helsel blocked the path of the Cadillac and ordered its driver out of the automobile. The driver, defendant, was then handcuffed in Helsel's squad car, and the trooper drove down the road in search of the van. The van was discovered abandoned on the shoulder of the road. When Helsel returned to his squad car, defendant told him that the driver of the van was still in the trunk of the Cadillac. Helsel found the keys to the Cadillac in the front seat of his squad car and then gave them to another trooper who had arrived on the scene, Trooper Vig. Vig went to the Cadillac, opened the trunk, and released Bonk. Helsel thereafter drove back to the Cadillac and found the trunk open. When he examined the car, he found a .38 revolver on the front seat and saw a ski mask. Although the gun was introduced into evidence at the trial, the ski mask was not. Helsel could not remember if he had pointed out the ski mask to any of the other police officers on the scene.

Detectives Anthony Adamitis and Eugene Zelasko arrived when Helsel was examining the Cadillac. Zelasko removed the gun from the car. In the meantime, Adamitis entered a nearby stable where he discovered a large quantity of cigarettes, ...

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