{ "id": 5608683, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MANFORD CLARK, Defendant-Appellant", "name_abbreviation": "People v. Clark", "decision_date": "1979-12-14", "docket_number": "No. 78-1372", "first_page": "640", "last_page": "652", "citations": [ { "type": "official", "cite": "79 Ill. App. 3d 640" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "380 N.E.2d 954", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 944", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3335493 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0944-01" ] }, { "cite": "319 N.E.2d 483", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2959948 ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0111-01" ] }, { "cite": "154 N.E.2d 286", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "15 Ill. 2d 171", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2766546 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/15/0171-01" ] }, { "cite": "329 N.E.2d 512", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 786", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5408310 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0786-01" ] }, { "cite": "360 N.E.2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1975, "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 888", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2897980 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0888-01" ] }, { "cite": "367 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "52 Ill. App. 3d 301", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3390238 ], "weight": 3, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/52/0301-01" ] }, { "cite": "144 N.E. 313", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "313 Ill. 33", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2434019 ], "opinion_index": 0, "case_paths": [ "/ill/313/0033-01" ] }, { "cite": "93 S. Ct. 1917", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "36 L. Ed. 2d 399", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "411 U.S. 937", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9795, 9733, 10247, 9801, 10154, 9808, 10032, 10067, 9942, 10172, 10077, 10110 ], "opinion_index": 0, "case_paths": [ "/us/411/0937-12", "/us/411/0937-02", "/us/411/0937-06", "/us/411/0937-03", "/us/411/0937-11", "/us/411/0937-08", "/us/411/0937-05", "/us/411/0937-01", "/us/411/0937-09", "/us/411/0937-04", "/us/411/0937-07", "/us/411/0937-10" ] }, { "cite": "286 N.E.2d 792", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "6 Ill. App. 3d 879", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467479 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0879-01" ] }, { "cite": "332 N.E.2d 745", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1972, "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 624", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2621789 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0624-01" ] }, { "cite": "365 N.E.2d 15", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "18" } ], "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 616", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3367882 ], "pin_cites": [ { "page": "620-21" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0616-01" ] } ], "analysis": { "cardinality": 1042, "char_count": 29780, "ocr_confidence": 0.916, "pagerank": { "raw": 5.929295359159149e-08, "percentile": 0.3701881847165607 }, "sha256": "036b29c47fe027f5a9bb3c1e20f8c03a871467a0d507db0c826b485c80304898", "simhash": "1:3262f750f9835b42", "word_count": 5042 }, "last_updated": "2023-07-14T21:35:08.542664+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MANFORD CLARK, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE LORENZ\ndelivered the opinion of the court:\nFollowing a bench trial defendant was convicted of burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19 \u2014 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\u2019 preliminary hearing testimony into evidence and (2) he was not proved guilty beyond a reasonable doubt.\nPrior 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\u2019s motion.\nMichael Spivack, Assistant State\u2019s Attorney of Cook County\nOn 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\u2019s family sold the building and moved from 4628 North Central Park in September 1977. She did not know the present whereabouts of the victim.\nHe 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.\nLater that same day he gave an investigator from the State\u2019s Attorney\u2019s staff a copy of the police report, the victim\u2019s 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 \u201cinformed me that he could not locate the Esmaili family.\u201d\nLouis Leone, Assistant State\u2019s Attorney of Cook County\nOn December 5,1977, after reviewing the list of witnesses he learned that the victim was unavailable. The office file showed that assistant State\u2019s 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.\nJames Jones \u2014 Deputy Cook County Sheriff\nHe is an investigator assigned to the State\u2019s Attorney. On December 1, 1977, he received a written request from assistant State\u2019s 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 \u201ca two flat building with no names, nor bells or anything.\u201d 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.\nFrom the police report he obtained the phone number of Pamela Eccarius, the missing witnesses\u2019 next door neighbor. During his phone conversation with her she informed him that \u201cElizabeth Esmaili and her family had moved in September of 1977 and left no forwarding address.\u201d She did not know of any relatives. Although she believed that Elizabeth had worked for Banker\u2019s 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.\nJones learned from the personnel department at Banker\u2019s 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\u2019s father worked for a newspaper, but they did not know which paper or in what capacity.\nHe 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\u2019s 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.\nHe 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\u2019s registration lists. His investigation lasted two or three days. In his opinion it would take another month to locate one of the witnesses.\nFran Norek, Assistant State\u2019s Attorney of Cook County\nOn 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.\nSubsequently, 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\u2019s name or occupation. Pamela further explained to her \u201cthat the Esmaili family was trying to avoid coming to court and did not want to testify or pursue this matter.\u201d\nThe following pertinent evidence was adduced at trial.\nFor the State\nLouis Esmaili \u2014 Preliminary Hearing Testimony\nOn 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 \u201cthe Philippines.\u201d 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 \u201cneat condition.\u201d When he returned to the apartment at 2:30 p.m. that day the bedrooms were torn apart and \u201call the purses were emptied.\u201d Neither his parents nor his sister were present when he returned home.\nOn 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 family member was in the apartment at 10:30 a.m. on March 10, 1977.\nOn redirect he stated that the defendant, Manford Clark, was not present in the apartment when he left for school that morning.\nPamela Eccarius\nOn March 10, 1977, she resided on the first floor of 4630 North Central Park. The Esmaili family resided next door on the second floor at 4628 North Central Park. At about 10:30 a.m. on that date she was looking out her bedroom window toward the alley when she saw a man trying to open the alley gate at the Esmaili residence. She identified this man as defendant and stated that at the time he was wearing a short, lightweight, dark blue jacket. Defendant appeared to be having difficulty opening the gate. She watched him for a few minutes and then \u201cwent on about my housework and went in the kitchen.\u201d While she was in her kitchen she saw defendant walk from the alley to the front through the gangway between her home and 4632 North Central Park. She was able to observe his face. She returned to a rear window facing the rear doorway to the Esmailis\u2019 second floor apartment and waited a few minutes. The distance between her home and the Esmailis was approximately 15 feet. Subsequently she saw, defendant leaving the Esmailis\u2019 apartment through the rear door. Defendant faced her and proceeded to descend the stairs to the first floor. She observed that he had \u201csomething under his arm\u201d and was taking a dog out of the house on a leash. She described the dog as a very expensive, full-grown Alaskan Malamute. When defendant reached the first floor Eccarius \u201crealized he was stealing the dog.\u201d After calling the police she returned to the window, but defendant was gone. She did not see where he went.\nThe police arrived in less than five minutes and she gave them a description of the man she had seen. About 10 minutes later the police brought defendant to the front of her house and placed him in a police car. She recognized defendant and told one of the officers that they had apprehended the right man.\nOn cross-examination she stated that she had never seen defendant prior to March 10, 1977. She admitted that she did not actually see defendant enter the Esmailis\u2019 apartment.\nOfficer Wallace \u2014 Chicago Police Department\nAt approximately 10:30 a.m. on March 10, 1977, he received an assignment to investigate a burglary in progress at 4628 North Central Park, second floor rear. Arriving at that address, he went through the gangway and observed a male running from the backyard to the alley. Although only able to see the man\u2019s back, he could see that the man was wearing a dark jacket and had light hair. His partner pursued the man westbound through the alleys, while he spoke with Pamela Eccarius. She gave him a description of the man which he relayed over the police radio. He then proceeded to check the allegedly burglarized apartment. He entered the open back door and found the bedroom \u201cransacked.\u201d The drawers were open, empty purses were on the floor, and a piggy bank was on one of the beds.\nInvestigator Abbot, Chicago Police Department\nHe also responded to the call announcing a burglary in progress at 4628 North Central Park. As he approached the location of the burglary he received a further broadcast stating that a subject, described as a white male in his mid-twenties and wearing a dark colored jacket, was running down the alley.\nWhen he saw other police officers a few blocks from the scene, he left his car. As he ran through a gangway, he saw a man fitting the description he had received and proceeded to take this man into custody. He identified this man as defendant. Defendant stated that he had just been chasing a friend who was in an orange vehicle.\nHe took defendant to the scene of the burglary where a witness stated that defendant \u201cwas the subject she had seen leaving the house.\u201d Next he inspected the second floor apartment and found the bedroom in a state of disarray. The dresser drawers were open and various articles were strewn on the bed and floor. An empty piggy bank with the cover removed was lying on the bed.\nWalter Glocke, Chicago Police Officer\nHe responded to the burglary in progress call along with his partner, Officer Wallace. As he entered the gangway at the scene he \u201cobserved a male, white, medium build, going through the gangway toward the alley.\u201d He identified this man as defendant. He pursued defendant westbound through the gangway. Defendant crossed the street, ran through another gangway, crossed a second street and rah into another gangway. As defendant reached the next alley more police officers arrived and joined the chase. Glocke and the other officers pursued defendant through another gangway and apprehended him in a playground on Lawndale Avenue. Defendant was carrying a dark blue coat under his arm.\nThe other officers placed defendant in a car and returned to the scene of the burglary. Glocke walked back, following the route he had pursued defendant. In the backyard of 4628 North Central Park he found a plastic bag containing numerous pennies.\nOn cross-examination he stated that at the time of the arrest defendant said he was waiting for a friend who was just driving away in a van. Glocke admitted that he did see a van \u201cpulling away\u201d but could not recall the van\u2019s color.\nFor the Defendant\nWilhelmina Clark\nShe is defendant\u2019s sister and resides at 4603 N. Monticello St. with her mother and nephew. Her grandmother, aunt and cousin, Tyrone Hutton, reside at 4633 N. Monticello St. Monticello is one block west of Central Park and the two streets share a common alley. She stated that she knew the Esmaili family who lived on the second floor of a building at 4628 North Central Park, which was across the alley and to the south of her grandmother\u2019s house.\nAt approximately 8:30 or 9 on the morning of March 10,1977, she met defendant at her grandmother\u2019s house. He was sitting at the kitchen table drinking coffee. Her mother, grandmother, sister and Tyrone Hutton were also present. At about 10 a.m. she asked defendant to accompany her to the store. As she and defendant started walking north on Monticello to Lawrence Avenue, she saw an orange van driven by Andrew Lopez proceeding westbound on Wilson Avenue which was one half block south. When she told defendant \u201cthere goes Andy,\u201d he ran westbound through a gangway across the street from their grandmother\u2019s home. Defendant was attempting to catch Lopez \u201cover by the park\u201d west of Monticello. She returned to her grandmother\u2019s home and approximately 15 or 20 minutes later learned that defendant had been arrested.\nAt no time during the morning of March 10, 1977, did she see defendant enter the yard or apartment at 4628 North Central Park. Defendant did not leave his grandmother\u2019s house or yard from 8:30 a.m. until they left for the store at approximately 10 a.m.\nOn cross-examination she stated that Andrew Lopez had previously said he would pick defendant up at home between 9:30 a.m. and 9:45 a.m. on March 10, 1977. Lopez and defendant were going to fix a toilet in a tavern.\nAndrew Lopez\nOn March 9,1977, he told defendant he would pick defendant up at home the next morning so that they could \u201cfix the washroom\u201d at his father\u2019s tavern. Defendant\u2019s house was at the corner of Monticello and Wilson Avenues. He arrived there at approximately 10 a.m. on March 10, 1977, parked his orange van on Wilson and sounded the horn. When defendant did not come out, he went to the house and knocked. No one answered so he drove away.\nBernice Baker\nShe is defendant\u2019s mother and resides at 4603 N. Monticello. At approximately 7 a.m. on March 10,1977, she went to her mother\u2019s home at 4633 N. Monticello. At approximately 8:30 a.m. her daughter Wilhelmina and defendant arrived. Her nephew Tyrone Hutton was raking leaves in the backyard. Defendant remained in the house for a while and then went out in the yard with Tyrone. She next saw defendant at the police station later in the day. She did not actually see the police arrest defendant.\nMichael Smith, Investigator, Public Defender of Cook County\nDuring the course of trial he visited 4628 and 4630 North Central Park. As he stood under the rear-most first floor window on the south side of 4630 North Central Park he was unable to see the rear door of the second floor of 4628 North Central Park.\nManford Clark, on his own behalf\nAt 8:30 a.m. on March 10, 1977, he and his sister Wilhelmina arrived at their grandmother\u2019s home at 4633 N. Monticello and sat in the kitchen. His grandmother, mother, another sister and Tyrone Hutton were there. After talking with his mother and grandmother he went outside to help Tyrone clean the backyard, remaining in the backyard for approximately 20 minutes. Wilhelmina came outside and asked him to accompany her to a store. He and Wilhelmina \u201cstarted walking towards the front\u201d and Tyrone went inside. As he was standing in front of his grandmother\u2019s house on Monticello he observed Andy Lopez \u201cstarting to pull off\u201d from the corner of Monticello and Wilson Avenue in an orange van. Lopez was supposed to pick him up at 10 that morning so that they could fix a toilet at a tavern owned by Lopez\u2019s father. Defendant whistled but Lopez continued to pull away. He told his sister, \u201cI ain\u2019t going,\u201d and ran westbound \u201cright through the gangway through the park.\u201d He was not able to catch Lopez because he was stopped by police officers who told him he was wanted for burglary. He told the officers he was chasing his friend in an orange van. The officers placed him in a car, drove to a house on Central Park directly across the alley from his grandmother\u2019s house and took him out of the car. A woman from 4630 North Central Park came out, but he did not recall whether she said, \u201cThat\u2019s the man I saw.\u201d He had seen this woman before but did not know her name. He was not in the second floor apartment at 4628 North Central Park on March 10,1977, nor did he take a dog or a bag of coins from that apartment.\nOn cross-examination he stated that he and his sister left at approximately 10 a.m. to walk to a store approximately six blocks away. He admitted that this was the same time at which he was to meet Andrew Lopez. He assumed Lopez would wait for him until he returned from the store.\nTyrone Hutton\nHe is defendant\u2019s cousin and resides in a first-floor apartment at 4633 N. Monticello. At approximately 9:30 a.m. on March 10, 1977, he saw defendant in their grandmother\u2019s apartment at the same address. Defendant came out to the backyard to help him rake leaves. When Wilhelmina asked defendant to go to the store with her, defendant and Wilhelmina left and he returned to his apartment. From his window he saw defendant and Wilhelmina cross Monticello on their way to the store. He did not see defendant cross the alley or enter any lots or houses on North Central Park. Nor did he see defendant with a bag or box containing coins.\nHe stated that he knew the family living on the second floor of 4628 North Central Park. The son, Lionel, was about 20 years old. The family had a large, black and grey Malamute Husky.\nFor the State \u2014 Rebuttal\nA certified copy of defendant\u2019s November 5, 1975, conviction following a plea of guilty to burglary was offered in evidence by the State and received by the court.\nOpinion\nDefendant first contends that the trial court erred in admitting Louis Esmaili\u2019s preliminary hearing testimony at trial. He argues that the State failed to establish reasonable diligence in attempting to locate Esmaili.\nIt is clear that testimony given by a witness at a preliminary hearing may be admitted into evidence at trial \u201cif the testifying witness is either dead or otherwise unavailable despite a good-faith effort by the State to produce him.\u201d (People v. Brown (1977), 47 Ill. App. 3d 616, 620-21, 365 N.E.2d 15, 18.) The effort to locate a missing witness must be directed by the State\u2019s Attorney. (People v. Payne (1975), 30 Ill. App. 3d 624, 332 N.E.2d 745.) A determination of whether or not that effort was made in good faith and with reasonable diligence must be made on a case-by-case basis after a careful review of the facts and circumstances of each particular case. People v. Burton (1972), 6 Ill. App. 3d 879, 286 N.E.2d 792, cert. denied (1973), 411 U.S. 937, 36 L. Ed. 2d 399, 93 S. Ct. 1917.\nFrom a careful review of the testimony adduced at the hearing on the motion to admit Louis Esmaili\u2019s testimony, it is evident that the State\u2019s Attorney\u2019s office directed a thorough and systematic search for Louis Esmaili as well as for the other members of the Esmaili family. Three assistant State\u2019s Attorneys who were assigned to this prosecution and their investigator each participated in the effort to locate the Esmaili family. Assistant State\u2019s Attorney Michael Spivack initially discovered on December 1, 1977, that the Esmailis might be unavailable and immediately requested assistance in locating them from the office investigator. He supplied the investigator with a copy of the police report. Assistant State\u2019s Attorneys Fran Norek and Louis Leone, who were also assigned to the case, met with the investigator, James Jones, on December 5, 1977, to review the file. The names of Louis, Lee, Sonia and Elizabeth Esmaili were contained in the file as well as the preliminary hearing testimony of Louis. It was agreed that Jones should spend his entire time on December 12,13 and 14 on the matter. He was given the police report and the phone number of Pamela Eccarius, a next-door neighbor of the Esmaili family and an eyewitness to the burglary. Jones spent two or three full days searching for the Esmailis. The investigator spoke with the present occupants of the building at 4628 N. Central Park and with Eccarius, but was unable to ascertain the present location of the Esmaili family. He contacted the last known employer of Elizabeth Esmaili, but learned that she was no longer employed there. He was unable to obtain forwarding addresses for Louis, Lee, Sonia or Elizabeth Esmaili from the post office. He did, however, learn that none of them had ever possessed an Illinois driver\u2019s license or received a traffic ticket. He found two Esmailis listed in the telephone directory, but was unable to obtain any useful information from these numbers.\nNorek and Leone also participated in the search. After Jones informed her that the father worked for a newspaper, Norek contacted the Sun-Times, Tribune and Lemer papers. None of the papers employed a person named Esmaili. Norek also spoke with Pamela Eccarius and learned \u201cthat the Esmaili family was trying to avoid coming to court and did not want to testify.\u201d Leone checked the telephone directory for the name Esmaili and for names with similar spelling, but obtained no helpful information.\nWe believe the facts here indicate that the State\u2019s Attorney\u2019s office acted with good faith and diligence in conducting a coordinated and systematic search for the Esmaili family. The assistant State\u2019s Attorneys and the investigator worked together in the effort. The search was thorough rather than perfunctory. We do not believe that admission of the preliminary testimony here would encourage laxity on the part of those conducting future searches for missing witnesses.\nPeople v. Holman (1924), 313 Ill. 33, 144 N.E. 313, upon which defendant relies in support of his argument that the search here was less than diligent, is clearly distinguishable from this case. In Holman defendant wrote three letters to an exculpatory witness who had testified at defendant\u2019s first trial. The last of these letters was sent approximately three months prior to commencement of the second trial. The court held that defendant had failed to establish due diligence so as to permit admission of the earlier testimony. The efforts of defendant in Holman are simply not comparable to the thorough search conducted by the assistant State\u2019s Attorneys and the investigator in this case.\nDefendant argues, however, that investigator Jones was told to locate Lee, Sonia or Elizabeth Esmaili rather than Louis Esmaili. However, the record does indicate that Jones also knew of, and was searching for, Louis Esmaili. Jones did review the file along with Norek and Leone. Norek testified that the names of all four Esmailis were contained in the file as was the preliminary hearing testimony of Louis. Additionally, Jones stated that he checked with the post office to determine whether Louis Esmaili left a forwarding address thus indicating that Louis was a target of his search. Moreover, it is reasonable to assume that any information concerning Louis\u2019 immediate family would have been helpful in locating Louis himself. (See People v. Payne (1975), 30 Ill. App. 3d 624, 332 N.E.2d 745.) This is especially true where, as here, the witness is of a youthful age and likely to reside with members of his immediate family.\nDefendant next contends that he was not proved guilty beyond a reasonable doubt. In support of this contention he first argues that the evidence did not establish that he lacked authority to enter the Esmailis\u2019 apartment. It is clear that in a prosecution for burglary the unauthorized nature of an entry may be established by circumstantial evidence. (People v. Flowers (1977), 52 Ill. App. 3d 301, 367 N.E.2d 453.) Flight from the scene of the crime is a form of circumstantial evidence which is based upon an inference that such flight bears a reasonable relation to a consciousness of guilt. (People v. Cokley (1977), 45 Ill. App. 3d 888, 360 N.E.2d 545.) Evidence of an accused\u2019s flight from the scene may, therefore, be considered with other evidence tending to prove guilt. People v. Watson (1975), 28 Ill. App. 3d 786, 329 N.E.2d 512.\nThe record before us contains sufficient circumstantial evidence to support the trial court\u2019s finding that defendant\u2019s entry into the second floor apartment at 4628 North Central Park was unauthorized. Pamela Eccarius testified that she observed defendant attempting to enter the yard at the said address through an alley gate. When defendant was unsuccessful he proceeded through another gangway. She observed defendant exiting the second floor apartment a short time later with a bundle under his arm and the Esmailis\u2019 dog on a leash. When the police subsequently brought defendant to the scene, she recognized him as the man she had earlier seen attempting to enter through the alley gate and then leaving the Esmailis\u2019 apartment. Responding to Eccarius\u2019 call, Officer Glocke observed defendant running from the scene through a gangway. When defendant was apprehended a few blocks away he claimed that he was chasing a friend. Returning to the scene of the burglary along the path he had chased defendant, Officer Glocke found a plastic bag full of pennies in the backyard of the burglarized premises. The police officers examined the Esmailis\u2019 apartment and found it to be in a state of general disarray. The dresser drawers were pulled out, purses were emptied and an empty piggy bank was lying on the bed. Defendant\u2019s efforts to enter the backyard of the premises through an alley gate, his departure from the Esmaili\u2019s apartment through the back door with thgir dog and a bundle and his subsequent flight from the scene are sufficient to establish the unauthorized nature of his entry.\nAlthough defendant contends that he never entered the apartment and that he was chasing a friend rather than fleeing, it is clear that in a bench trial the trial court must determine the credibility of witnesses and the weight to be accorded their testimony. (People v. West (1958), 15 Ill. 2d 171, 154 N.E.2d 286; People v. Cokley (1977), 45 Ill. App. 3d 888, 360 N.E.2d 545.) We find no basis in the record before us for substituting our judgment for that of the trial court.\nIn further support of his reasonable doubt contention, defendant argues that the evidence failed to establish that Sonia Esmaili owned, or was entitled to possession of, the allegedly burglarized apartment.\nIn People v. Gregory (1974), 59 Ill. 2d 111, 319 N.E.2d 483, our supreme court held that an indictment for burglary which did not allege ownership or possession of the burglarized premises was, nevertheless, sufficient. The court held that the indictment was sufficient to enable defendant to prepare a defense and to protect defendant from a subsequent prosecution for the same offense. The decision in Gregory has been held to be applicable where the proof adduced at trial fails to establish ownership or possession of the burglarized premises. (People v. Hagen (1978), 63 Ill. App. 3d 944, 380 N.E.2d 954; People v. Flowers (1977), 52 Ill. App. 3d 301, 367 N.E.2d 453.) In Flowers the court stated that:\n\u201cAlthough the court\u2019s opinion in Gregory dealt with the sufficiency of criminal pleadings, rather than of proof, we believe that it has equal application to the instant case. It is therefore unnecessary for the State to prove the identity of the owner or possessor of the burglarized premises, provided the proof otherwise establishes that the entry was unauthorized, and the pleadings and proof are sufficiently specific to enable the defendant to present a defense, if he has one, and to protect the defendant from a second prosecution for the same offense.\u201d 52 Ill. App. 3d 301, 304, 367 N.E.2d 453, 455.\nAs we have discussed above, the proof in the instant case was certainly sufficient to establish beyond a reasonable doubt that defendant\u2019s entry into the premises was without authority. Moreover, defendant was fully apprised of the State\u2019s theory of the case and, therefore, suffered no disadvantage in the preparation of his defense. There was no question as to the time and place of the alleged burglary. Finally, defendant need have no fear of a second prosecution for the same burglary. The entire record in the trial court, as well as this opinion, will effectively bar any further prosecution for the burglary of the second floor apartment at 4628 North Central Park on March 10,1977. Defendant\u2019s argument is therefore without merit.\nFor the foregoing reasons the judgment of the circuit court is affirmed.\nAffirmed.\nSULLIVAN, P. J., and MEJDA, J., concur.", "type": "majority", "author": "Mr. JUSTICE LORENZ" } ], "attorneys": [ "James J. Doherty, Pubhc Defender, of Chicago (Robert Guch and Aaron L. Meyers, Assistant Pubhc Defenders, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Linda Dale Woloshin, and Robert J. Kaiser, Jr., Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MANFORD CLARK, Defendant-Appellant.\nFirst District (5th Division)\nNo. 78-1372\nOpinion filed December 14, 1979.\nJames J. Doherty, Pubhc Defender, of Chicago (Robert Guch and Aaron L. Meyers, Assistant Pubhc Defenders, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Linda Dale Woloshin, and Robert J. Kaiser, Jr., Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0640-01", "first_page_order": 662, "last_page_order": 674 }