APPEAL from the Circuit Court of Kendall County; the Hon.
WILSON D. BURNELL, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
The defendant was charged with and found guilty of a misdemeanor theft, in violation of Section 16-1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(a)(1)). A six-member Kendall County jury found that the defendant had taken, without permission, several new railroad ties belonging to the Burlington Northern Railroad. He was placed on supervision for nine months in order to pay a fine of $100 and court costs in the amount of $30.
The defendant is employed by T & L Manufacturing as a foreman. On June 13, 1980, West's employer asked him to get some railroad ties from the Burlington Northern Railroad Company. The defendant obtained a permit authorizing him to take "1/2 ties, more or less." Allegedly it was explained to him at that time that a 1/2 tie is 3 1/2 to 4 feet long. On June 19 the defendant went, as he had been directed, to the stretch of track between Earlville and Plano, and removed 18 long, allegedly unused ties from the right-of-way. An officer of the Oswego Police Department stopped the defendant and inquired about the ties he had on his truck. The defendant produced the permit authorizing him to take "1/2 used ties, more or less." When asked why he had taken whole ties, defendant replied that he would rather have the long ones to use as parking lot abutments. The defendant was informed of his Miranda rights and later charged with theft under $150.
The defendant alleges error in three instances: (1) he argues that the trial court erred in quashing two pretrial subpoenas; (2) he contends that the trial court erred in failing to strike the testimony of Phyllis Dolan, an employee of the railroad; and (3) he claims that the State did not present enough evidence to justify a verdict of guilty.
We address the subpoena issue first. The defendant's contention is that the trial court erred in quashing two pretrial subpoenas served by him upon the Burlington Northern. It is defendant's position that by quashing these subpoenas the trial court violated his sixth amendment right to compulsory process. We reject the notion that the defendant's right to compulsory process was violated and further find that the trial court's action was consistent with Illinois case law concerning the use of pretrial subpoenas.
The compulsory process clause is one of five provisions that the framers of the United States Constitution consolidated in the sixth amendment as a basic code of procedure for use in criminal trials. (Washington v. Texas (1967), 388 U.S. 14, 18 L.Ed.2d 1019, 87 S.Ct. 1920.) In 1967, the Supreme Court of the United States ended a 180-year silence concerning the compulsory process clause in its decision in Washington. In that case the court struck down a statute which provided that persons charged as principals, accomplices, or accessories in the same crime could not testify in behalf of one another. The court held that the statute violated the sixth amendment guarantee of compulsory process because it "denied him [the defendant] the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense." (Emphasis added.) Washington v. Texas (1967), 388 U.S. 14, 23, 18 L.Ed.2d 1019, 1025, 87 S.Ct. 1920, 1925.
Subsequent cases applying the compulsory process clause also centered on the defendant's right to obtain and present relevant material testimony at trial. (See, for example, Webb v. Texas (1972), 409 U.S. 95, 34 L.Ed.2d 330, 93 S.Ct. 351 (threats by a trial judge which caused defendant's witness to refuse to appear violated the sixth amendment); United States v. Nobles (1975), 422 U.S. 225, 45 L.Ed.2d 141, 95 S.Ct. 2160 (the sixth amendment may not be invoked as a justification for presenting a half-truth).) In the instant case, no action of the trial judge has worked to deprive the defendant of his right to call witnesses at trial. Rather, the trial court ruled on the propriety of two pretrial subpoenas.
In United States v. Nixon (1974), 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090, the Supreme Court of the United States set out a four-point test for determining whether the issuance of pretrial subpoenas is required by the sixth amendment. A party must show that (1) the material sought is evidentiary and relevant; (2) the material sought is not otherwise reasonably procurable by the exercise of due diligence in advance of trial; (3) that the moving party cannot properly prepare for trial without such production and the failure to obtain the materials sought may tend to unreasonably delay the trial; and (4) the application is made in good faith and is not intended as a general "fishing expedition." Neither of the subpoenas served upon the Burlington Northern by the defendant meets the Nixon standard.
The first subpoena demanded that the railroad produce a copy of the authorization given to defendant as well as any reports of any detectives or any statements taken by employees or agents of the railroad. A copy of the authorization was clearly otherwise procurable in advance of trial. The State provided the requested document one full month in advance of trial pursuant to the defendant's later motion for discovery. The demand for reports included no limitation as to time, place, or subject matter and thus are of questionable relevance and constituted a general "fishing expedition."
• 1 The second subpoena sought as witnesses, the employees of the railroad who worked on the stretch of track involved in this case and further commanded that payroll records for one week prior to June 19, 1980, and "all diaries, summaries, reports, notes, or memoranda of crew foreman, supervisory personnel, or section chiefs regarding this stretch of railroad" be produced. Such a broad demand is of questionable relevance. Moreover, it seems clear that it was intended as a catch-all request thus violating the prohibitions set out in Nixon. A similar demand was denied by the Supreme Court in the case of Bowman Dairy Co. v. United States (1951), 341 U.S. 214, 95 L.Ed. 879, 71 S.Ct. 675. We reject defendant's contention that the trial court held that he was not entitled under any circumstances to cause pretrial subpoenas to issue. In its order quashing defendant's subpoenas the court found that "the defendant has no right to subpoena the Burlington Northern as heretofore subpoenaed." Argument which had taken place before the court indicated that the materials sought by the defendant would be obtainable by other methods. It appears that the court found the form of the subpoena unreasonable and the evidence sought of questionable relevance and therefore quashed the subpoenas.
We further note that the order of the trial court is not inconsistent with Illinois case law concerning the use of pretrial subpoenas. The defendant relies heavily on our supreme court's holding in People ex rel. Fisher v. Carey (1979), 77 Ill.2d 259, 396 N.E.2d 17. We believe this reliance is misplaced. In Fisher, the supreme court rejected the theory that a pretrial subpoena can issue only if defendant has unsuccessfully attempted to obtain the material sought through discovery. Fisher did not outline an absolute right to resort to subpoena. The court noted and applied the Nixon standard just as the trial court did in the case at bar. Of course, the Nixon and Fisher opinions were limited to an examination of the circumstances which trigger a sixth amendment right to subpoenas duces tecum. We note that there is no general constitutional right to depose witnesses prior to trial. Melancon v. Superior Court (1954), 42 Cal.2d 698, 268 P.2d 1050.
Nor are we swayed by defendant's interpretation of People v. Harris (1980), 91 Ill. App.3d 1, 413 N.E.2d 1369. That case was not, as defendant claims, "identical to the case at bar." In Harris, the defendant, charged with a misdemeanor, caused a subpoena to be issued to the sheriff demanding production of certain documents. The sheriff denied the subpoena and was held in contempt of court. A careful reading of the opinion reveals that the decision turned upon the fact that no motion to quash had ever been made and that the subpoena was still in effect. The court in Harris held that parties may not ignore or defy a valid subpoena. It did not hold that subpoenas once issued may never be quashed, or that the court is without authority to review the propriety of a subpoena.
We turn next to the evidentiary issue. Defendant's objection to Phyllis Dolan's testimony centers on the fact that she attempted to testify concerning her general habit as to the issuance of permits rather than testifying to the particular facts involved in this case. Although Mrs. Dolan testified that she usually informed applicants that a half-tie was 3 1/2 to 4 feet long and that she was not able to issue a permit for long ties, she admitted during cross-examination that she had no detailed recollection of her conversation with the defendant. Later, in the presence of the jury, she misidentified a court-appointed interpreter as the defendant.
The defendant correctly points out that evidence of habit or general practice is not admissible as proof of behavior and conformity with that habit on a specific occasion. (Goetz v. County Mutual Insurance Co. (1975), 28 Ill. App.3d 154, 328 N.E.2d 109; City of Salem v. Webster (1901), 192 Ill. 369, 61 N.E. 323.) To do so constitutes error. However, it is not the policy of the appellate court to reverse a jury verdict merely because error has been committed. (Taylor Coal Co. v. Dawes (1906), 220 Ill. 145, 77 N.E. 131.) Where there is other sufficient, competent evidence establishing defendant's guilt beyond a reasonable doubt and it does not appear that the error complained of was the basis of the jury's verdict, that error is harmless and reversal is not required. (People v. Butler (1978), 63 Ill. App.3d 132, 379 N.E.2d 703.) Generally, a reviewing court will not reverse a jury verdict due to an error in the ...