Wise

Defendant was convicted in a court trial of first degree burglary. He raises two issues on appeal: (1) whether the prosecution exercised due diligence to obtain the presence of its chief witness at trial; (2) whether defendant’s entry through a locked gate onto an outdoor stairway constitutes burglary.

Facts

The Offense

On September 8,1992, between 2 a.m. and 3 a.m., Richard Leagan looked out his window and saw appellant cutting a hole in the gate at the front of his apartment building. The building is a three-story, three-unit, Victorian-style building. A stairway leads from the sidewalk to a small porch from which the three apartment doors open. The stairway and porch are enclosed on three sides and roofed. The opening at the bottom of the stairway is secured by a wrought iron gate covered in iron mesh. The gate rests on the third step and extends to the roof. There are apparently doorbell buzzers on the gate for the three apartments. The gate is kept locked.

After observing defendant cutting through the iron mesh on the gate, Leagan called the police. When he returned to the window a few seconds later, Leagan saw defendant inside the gate, standing on the stairway.…