APPEAL from the Circuit Court of Du Page County; the Hon.
FREDRICK HENZI, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This could be called "The Case of the Missing Dux."
Defendant, Elena Jablonskis, was convicted by a jury of theft of under $150 for shoplifting two blouses from a Marshall Field & Co. store and was sentenced to 12 months' conditional discharge. Defendant's primary contentions center on the failure of Ms. Gladys Dux, a former security guard at Fields, to testify at trial. Defendant argues that Dux's failure to appear and various rulings by the trial court concerning the significance of her absence have violated her rights to a fair trial, to due process and to equal protection. Defendant also raises three issues not connected with Dux: that the prosecution failed to show the corporate existence of Marshall Field & Co.; that the prosecution failed to prove defendant guilty beyond a reasonable doubt; and that the State's conduct during the trial was so prejudicial as to prevent a fair trial.
Defendant was arrested at the Marshall Field & Co. store at Oakbrook Mall, Oakbrook, Illinois on November 18, 1974. A complaint was signed by Gladys Dux, a security agent at this store, charging the defendant with the theft of two blouses. Prior to trial defendant moved to suppress certain evidence, including the blouses. At a hearing on the motion several witnesses, including Dux, testified and were cross-examined as to the events of November 18, 1974. The motion to suppress was denied.
At the outset of the trial, on August 24, 1976, the assistant state's attorney informed the court that Dux had moved to California and would, therefore, not appear at the trial. He then made a motion to have her pretrial testimony admitted into evidence. Defendant's attorney objected strenuously to the admission of the prior testimony of Dux. The trial court denied the prosecutor's motion, holding that being in California did not make the witness unavailable as a matter of law and, therefore, her prior testimony was not admissible as an exception to the hearsay rule. Subsequently defendant tried to have Dux's prior testimony admitted as part of her case, apparently in order to attempt to impeach the testimony of the State's other witnesses. Again the trial court refused to allow it in.
Three security guards of Marshall Field & Co., Rhoda Hajduk, Barbara Weinstein and Gladys Dux, were all present at all stages of the apprehension and investigation of the defendant. At the trial the State called two of the three as witnesses, Hajduk and Weinstein. Hajduk testified that on the date in question she saw the defendant select three blouses and then take them into a dressing room. She then saw the defendant leave the dressing room with only two blouses and put these two blouses back on the rack and walk out of the area. Weinstein testified that while she was not present when defendant entered the dressing room, she also saw the defendant leave the dressing room and hang up two blouses and then walk out of the area.
Both Hajduk and Weinstein testified that they, together with Dux, followed the defendant when she left the area. Dux stopped the defendant and asked her to come with them. Dux, defendant, Weinstein and Hajduk all went downstairs to the security office where defendant placed her shopping bag on the table. Dux reached into the shopping bag and pulled out a blouse. Dux then asked the defendant where the other blouse was and defendant removed the blouse from inside the front of her pantyhose.
Hajduk further testified that she knew Marshall Field & Co. to be a corporation because she had seen a certified certificate of incorporation.
Defendant took the stand and contradicted the testimony of the two security guards, claiming that she had placed two blouses in the shopping bag to carry them to a saleslady to pay for them and that she had not concealed anything on her person.
Defendant raises four subissues based on the absence of Dux from the trial. First, she claims that the trial court should have permitted defendant to introduce Dux's testimony at the prior hearing. Second, she claims that Dux's presence was required for a fair trial. Third, she claims that if the trial could proceed without Dux the judge should have instructed the jury that, because of her absence, they should infer that her testimony would have been unfavorable to the prosecution. Fourth, she contends that her attorney should have been allowed to comment upon the absence of Dux in his closing argument to the jury.
1 We consider first defendant's contention concerning the admissibility of Dux's prior testimony. We find that, by strongly objecting to the introduction of this same testimony by the prosecution, defendant waived any right to insist upon its introduction later in the trial. Nothing defendant has said convinces us that somehow the prior testimony could fall within an exception to the hearsay rule for the defense but not for the prosecution.
As to defendant's second and third contentions based on Dux, we hold that unless a non-appearing witness has some critical, unique knowledge or has been deliberately made unavailable to the State, the absence of such a witness has little legal significance.
The basic rule governing these contentions was set forth by the Illinois Supreme Court in People v. Jones (1964), 30 Ill.2d 186, 190, 195 N.E.2d 698, 700, where the court stated:
"The State is not obligated to produce every witness to a crime and the failure to produce a witness does not give rise to a presumption that the testimony of that ...