APPEAL from the Circuit Court of Cook County; the Hon.
THEODORE M. SWAIN, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a bench trial defendant was convicted of burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19-1) and was sentenced to serve a term of four years in the Department of Corrections. On appeal, he contends that (1) the trial court erred in admitting a witness' preliminary hearing testimony into evidence and (2) he was not proved guilty beyond a reasonable doubt.
Prior to commencement of the trial, the State presented a motion to allow the use at trial of testimony given by Louis Esmaili at the preliminary hearing. The following pertinent evidence was adduced at the hearing on the State's motion.
Michael Spivack, Assistant State's Attorney of Cook County
On December 1, 1977, he attempted to telephone the victim of a burglary occurring at 4628 North Central Park, Chicago, but was unsuccessful because the telephone was disconnected. He contacted directory assistance, but was told that there was no new listing for the victim. Pamela Eccarius, another witness in the case and a former neighbor of the victim, informed him that the victim's family sold the building and moved from 4628 North Central Park in September 1977. She did not know the present whereabouts of the victim.
He did not check county records to ascertain the owner of the property involved. He was not aware of the relationship between Lee, Sonia and Elizabeth Esmaili nor was he aware of their places of employment.
Later that same day he gave an investigator from the State's Attorney's staff a copy of the police report, the victim's last known address, and the information he received from Pamela Eccarius and asked the investigator to locate Sonia, Elizabeth and Lee Esmaili. On December 12, 1977, the investigator "informed me that he could not locate the Esmaili family."
Louis Leone, Assistant State's Attorney of Cook County
On December 5, 1977, after reviewing the list of witnesses he learned that the victim was unavailable. The office file showed that assistant State's Attorney Spivack had asked the investigator to locate Lee, Sonia or Elizabeth Esmaili. After failing to reach the witnesses by telephone Leone checked the Chicago telephone book for listings for Louis, Elizabeth or Sonia Esmaili, but found a listing only for a George Esmaili. He also checked the Chicago phone book for names similar to Esmaili, thinking perhaps an error in spelling might have been made. He was still unable to locate the witnesses.
James Jones Deputy Cook County Sheriff
He is an investigator assigned to the State's Attorney. On December 1, 1977, he received a written request from assistant State's Attorney Spivack to locate Lee, Sonia or Elizabeth Esmaili. He was given the police report to aid in his investigation. On December 13 he went to 4628 North Central Park, the address listed on the police report where he found "a two flat building with no names, nor bells or anything." He knocked on the door, but received no response. A woman on the first floor answered his knock when he returned there the next day, but she spoke no English.
From the police report he obtained the phone number of Pamela Eccarius, the missing witnesses' next door neighbor. During his phone conversation with her she informed him that "Elizabeth Esmaili and her family had moved in September of 1977 and left no forwarding address." She did not know of any relatives. Although she believed that Elizabeth had worked for Banker's Life on West Lawrence Avenue, she was not familiar with the employment of other members of the Esmaili family. Eccarius stated that a Korean family had moved into the second floor apartment. She felt that the Esmaili family still lived in the area, but she did not know exactly where.
Jones learned from the personnel department at Banker's Life that Elizabeth Esmaili worked there during August and September, 1977, but that she left no forwarding address or telephone numbers upon termination. They did inform Jones that Elizabeth's father worked for a newspaper, but they did not know which paper or in what capacity.
He also inquired of the post office, but learned that Louis, Sonia and Elizabeth Esmaili did not leave forwarding addresses. He was also able to ascertain that none of them had been arrested, or held an Illinois driver's license or issued a traffic ticket. Telephone security informed him that the number listed for the Esmailis had been reassigned to another customer. The new holder of the number was unable to supply any information about the Esmaili family. Although he found two Esmaili names in the telephone directory, he was unable to obtain any information from these persons.
He was unable to find social security numbers, business phones or birth dates for the Esmaili family. He did no search for death certificates because he had no reason to believe that all four members of the Esmaili family might be dead, nor did he check voter's registration lists. His investigation lasted two or three days. In his opinion it would take another month to locate one of the witnesses.
Fran Norek, Assistant State's Attorney of Cook County
On December 5, 1977, she, Louis Leone and James Jones reviewed the file on Manford Clark whose case was approaching trial. They noticed that a request for investigation had been completed by Spivack. The names Lee, Sonia, Louis and Elizabeth Esmaili were contained in the file. Louis Esmaili, the son of the persons who rented the burglarized apartment, had testified at the preliminary hearing. She then gave Jones the police reports and the phone number of Pamela Eccarius and requested that he look for the Esmaili family. It was agreed that Jones spend his entire time on December 12, 13 and 14 in search of the missing witnesses.
Subsequently, she telephoned the personnel departments of the Chicago Tribune, Chicago Sun-Times and Lerner newspapers and learned that none of them had an employee named Esmaili. Pamela Eccarius informed her that Sonia Esmaili was the mother of Louis and Elizabeth Esmaili. Pamela did not know the father's name or occupation. Pamela further explained to her "that the Esmaili family was trying to avoid coming to court and did not want to testify or pursue this matter."
The following pertinent evidence was adduced at trial.
Louis Esmaili Preliminary Hearing Testimony
On March 10, 1977, he resided at 4628 North Central Park in a second floor apartment rented by his parents. He believed the building was owned at the time by "the Philippino's." At 8 a.m. on March 10, 1977, he left the apartment to go to school. His mother, stepfather and sister were still home when he left and the apartment was in a "neat condition." When he returned to the apartment at 2:30 p.m. that day the bedrooms were torn apart and "all the purses were emptied." Neither his parents nor his sister were present when he returned home.
On cross-examination he stated that his mother and stepfather rented the apartment and that he himself did not pay rent. He admitted that he did not know what time his parents and sister left the apartment on the morning in question. He could not say whether any ...