FIRST DIVISION October 6, 2014

No. 1-11-3534

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 07 CR 14515 ) TERRY HOOD, ) Honorable ) Lawrence E. Flood, Defendant-Appellant. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Delort concurred in the judgment and opinion. Justice Connors dissented, with opinion.

OPINION

¶1 A jury convicted defendant, Terry Hood, of aggravated battery to a senior citizen causing

great bodily harm. Prior to trial, the State conducted an evidence deposition of the complaining

witness pursuant to Illinois Supreme Court Rule 414 in which the witness identified defendant as

his attacker. Ill. S. Ct. R. 414 (eff. Oct. 1, 1971). Defense counsel attended the deposition, and

conducted cross-examination, but defendant did not attend. Over six months after the deposition,

the State informed the circuit court that the defense had waived defendant's appearance at the

deposition, but that the waiver did not appear on the record. Defense counsel agreed that she

waived defendant's appearance at the deposition.

¶2 Defendant asks this court to review, under the second prong of the plain-error doctrine,

whether he knowingly and voluntarily waived his right to confront the witness against him at the No. 1-11-3534

evidence deposition. We hold defendant has satisfied his burden of proving plain error because

he has shown that he did not knowingly or voluntarily waive his confrontation rights and that his

claim of error involved a substantial right, i.e., his right to confront the witness against him as

guaranteed by both the federal and state constitutions.

¶3 JURISDICTION

¶4 The circuit court sentenced defendant on October 19, 2011. On that same day, defendant

timely filed his notice of appeal. Accordingly, this court has jurisdiction pursuant to article VI,

section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing

appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970,

art. VI, § 6; Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. Feb. 6, 2013).

¶5 BACKGROUND

¶6 The State charged defendant by indictment with three counts of attempted murder, home

invasion, aggravated battery, aggravated unlawful restraint, and aggravated battery of a senior

citizen in connection to a battery inflicted upon 69-year-old Robert Bishop, Jr., in May of 2007. 1

¶7 On February 25, 2008, the State filed a motion seeking to take an evidence deposition of

Bishop pursuant to Illinois Supreme Court Rule 414(a) due to the "substantial possibility" that he

would not be available to testify at trial due to the serious nature of the injuries he sustained. Ill.

S. Ct. R. 414(a) (eff. Oct. 1, 1971). The State asserted in its motion that it would "provide the

opportunity for confrontation and cross-examination of the witness to the defendant and h[is]

attorney." In response, defendant argued Bishop's injuries suggested that he was unable to

communicate and that the staff at the nursing home where Bishop resided "continuously

1 The parties in their briefs before this court each state that the incident occurred in 2008. Our review of the record, including the indictment, however, shows that the incident occurred in 2007.

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documented that Mr. Bishop can only shake his head for yes/no responses." Defendant argued

further that although he did not believe that Bishop's condition would allow meaningful

cross-examination, he asked that the court determine, with the help of medical testimony, Bishop's

competency to testify according to section 115-14 of the Code of Criminal Procedure of 1963.

725 ILCS 5/115-14(c) (West 2008). The circuit court granted the State's motion on March 10,

2008, "with one caveat." The circuit court explained that if Bishop could only shake his head to

communicate, then the deposition would not be admissible.

¶8 On March 31, 2008, Bishop's video deposition was taken in the presence of Assistant

Public Defenders (APD) Lisa Boughton and Crystal Carvellos and Assistant State's Attorney

(ASA) Sherry DeDore. Defendant was not present at the video deposition. 2 Bishop testified he

had been in the hospital and was then in a nursing home because defendant attacked him. He

lived on the first floor while defendant lived on the second or third floor. He testified that he had

occasional money problems with defendant. Regarding the attack, Bishop testified that defendant

hit him twice in the head with a hammer. He could not recall anything else. When shown a

picture of his bedroom, he identified it as the location of the attack. He identified a photograph of

the hammer found in his apartment as defendant's hammer. On cross-examination, Bishop

recalled meeting ASA DeDore on two prior occasions and that he had seen the photographs. He

testified that he had lived with defendant in the past. He also believed the hammer belonged to

defendant.

¶9 The circuit court held status hearings on April 1, May 1, June 9, July 17, August 27, and

September 25 of 2008. The parties made no mention of defendant's absence from Bishop's

2 The footage of the video deposition shows that neither party indicated defendant was present and the parties agree in their briefs before this court that defendant was not present at Bishop's video deposition.

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evidence deposition at any of the above hearing dates. On October 22, 2008, defendant, APD

Boughton, and ASA De Dore were present at a status hearing before the circuit court. The

following occurred at the end of the hearing.

"MS. DE DORE [ASA]: Judge, there was also a matter that

had not previously been put on the record. When we took the

victim's evidence deposition I had initially requested that the

defendant be brought over by the sheriffs. We had some

discussion, counsel and I, and apparently the defendant's presence

was not desired by the defense and therefore, I don't believe it's on

the record that his presence was waived by them at the evidence

deposition. I just want to make sure it's clear on the record.

MS. BOUGHTON [APD]: I don't believe I actually did put that

on the record, but I did waive [defendant's] appearance at the

evidence deposition."

¶ 10 On January 25, 2011, the State filed an amended motion in limine asking that Bishop's

deposition testimony be admitted as evidence as an exception to the rule against hearsay pursuant

to Illinois Rule of Evidence 804(b) (eff. Jan. 1, 2011). The State argued Bishop had become

unavailable due to his injuries, which caused him to not be able to respond to questioning.

¶ 11 On April 7, 2011, the circuit court conducted a hearing to determine whether Bishop's

video deposition testimony should be allowed into evidence. Based on the medical testimony

presented at the hearing, the circuit court found Bishop to be an unavailable witness and granted

the State's motion.

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¶ 12 At trial, the State published Bishop's videotaped evidence deposition to the jury. The

jury found defendant guilty of aggravated battery of a senior citizen. On October 19, 2011,

defendant filed a motion for a new trial, which the circuit court denied. On that same day, the

circuit court sentenced defendant to 22 years in prison and denied his motion to reconsider his

sentence. Defendant timely appealed.

¶ 13 ANALYSIS

¶ 14 Defendant contends the circuit court violated his constitutional right to confront the

witnesses against him when it allowed Bishop's video deposition into evidence even though he

was not present at the deposition. He acknowledges that his counsel stated on the record at a

later proceeding that the defense waived his presence at the deposition, but argues that the record

does not show that he personally and knowingly waived his right to confront Bishop.

Defendant further admits that he did not properly preserve this issue for our review, but urges

this court to consider the matter under the second prong of the plain-error doctrine because the

error involved a substantial constitutional right.

¶ 15 In response, the State argues defendant affirmatively waived this issue because his

attorney declined the State's invitation to arrange for defendant to be present at the deposition.

The State agrees that defendant did not preserve this issue, but argues that defendant has not

satisfied his burden of proving plain error.

¶ 16 The plain-error doctrine allows this court to review a procedurally defaulted claim of error

that affects a substantial right in two instances: "where the evidence in a case is so closely balanced

that the jury's guilty verdict may have resulted from the error and not the evidence" or "where the

error is so serious that the defendant was denied a substantial right, and thus a fair trial." People v.

Herron,

(2005); see also Ill. S. Ct. R. 615(a) ("Any error, defect,

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irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors

or defects affecting substantial rights may be noticed although they were not brought to the

attention of the trial court."). Defendant bears the burden of persuasion of proving plain error.

People v. McLaurin,

(2009). Defendant must first, however, show that an

error occurred. People v. Hillier,

(2010).

¶ 17 A criminal defendant's right to confront the witness used against him or her is protected by

the confrontation clauses contained in both the federal constitution, by the sixth amendment, made

applicable to the state through the fourteenth amendment, and the Illinois Constitution. U.S.

Const., amend. VI "In all criminal prosecutions, the accused shall enjoy the right *** to be

confronted with the witnesses against him ***."); Ill. Const. 1970, art. I, § 8 (amended Nov. 8,

1994) ("In criminal prosecutions, the accused shall have the right *** to be confronted with the

witness against him or her ***."). "The central concern of the confrontation clause is to ensure

the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the

context of an adversary proceeding before the trier of fact." People v. Lofton,

(2000). Included in the right to confront witnesses is the right to view and hear witness testimony,

and the right to help defense counsel with cross-examination.

.

¶ 18 Confrontation errors are constitutional violations, but, as with other rights a defendant

holds, he or she may waive such a right.

; People v. Stroud,

(2004).

Although constitutional rights may be waived, "[t]here is a presumption against the waiver of

constitutional rights." People v. Campbell,

(2003). For a waiver to be

effective " 'it must be clearly established that there was an "intentional relinquishment or

abandonment of a known right or privilege." ' "

(quoting Brookhart v. Janis,

(1966), quoting Johnson v. Zerbst,

(1938)). Our supreme court has explained

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" ' "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent

acts done with sufficient awareness of the relevant circumstances and likely consequences." ' "

Stroud,

(quoting People v. Johnson,

(1979), quoting Brady v.

United States,

(1970)).

¶ 19 We hold defendant has shown error occurred in this case. Prior to Bishop's March 31,

2008, evidence deposition, the record is devoid of any mention of defendant waiving his right to

confront Bishop, despite the State's indicated willingness to accommodate defendant as stated in

its motion. At Bishop's evidence deposition, which defendant did not attend, there is no mention

on the videotape that defendant had waived his confrontation rights. Over six months later, at a

October 22, 2008, hearing, the State informed the court that defense counsel waived defendant's

presence at the evidence deposition because "the defendant's presence was not desired by the

defense." Defense counsel agreed, stating "I did waive [defendant's] appearance at the evidence

deposition." The circuit court conducted status hearings on April 1, May 1, June 9, July 17,

August 27, and September 25 of 2008 where no mention was made of defendant's waiver of his

right to confront Bishop. Accordingly, as the above facts demonstrate, there is no mention in the

record of defendant waiving his confrontation rights prior to, at, or even immediately after the

March 31, 2008, evidence deposition. The record does not mention defendant's waiver until over

six months after the deposition had occurred, in which the State and defense counsel refer to an

alleged off-the-record waiver. Although constitutional rights may be waived, there is a

presumption against waiver and any waiver must be a knowing, voluntary act with awareness of

the consequences. Campbell,

; Stroud,

. Such a waiver must

also be shown to be an abandonment or intentional relinquishment of a known right. Campbell,

. Based on the record before us, we cannot say the requirements of a valid

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waiver of a constitutional right were satisfied here where there is no mention of defendant's waiver

until over six months after it allegedly occurred. There is nothing in the record showing that

defendant knew of his right to confront Bishop or the consequences of waiving that right or that

defendant acted voluntarily and intentionally in waiving that right.

¶ 20 Although defendant has shown error occurred here, he still must satisfy either one of the

prongs of the plain-error doctrine. Defendant raises his claim of error only under the second

prong of the plain-error doctrine, which allows a court of review to reach a procedurally

defaulted claim of error "where the error is so serious that the defendant was denied a substantial

right, and thus a fair trial." People v. McLaurin,

(2009). Prejudice is

presumed under the second prong of the plain-error doctrine due to the importance of the right

involved. People v. Thompson,

(2010). Our supreme court has described

a criminal defendant's right to confront the witness against him or her as "a fundamental right."

People v. Campbell,

(2003) ("The right of an accused to confront the

witnesses against him is a fundamental right made obligatory on the states through the fourteenth

amendment."). Our supreme court has also, albeit in the context of a defendant's right of

presence at trial, described the right to confront witnesses as a substantial right. People v. Bean,

(1990). Accordingly, based on the constitutional and substantial nature of

defendant's right to confront the witnesses against him, we hold defendant's claim of error in this

case concerns a substantial right reviewable under the second prong of the plain-error doctrine.

As such, defendant has satisfied his burden of proving plain error occurred in this case.

¶ 21 Although we hold that the requirements of a valid waiver of a constitutional right were

not satisfied here, we further hold defendant did not waive his confrontation rights pursuant to

Illinois Supreme Court Rule 414. Ill. S. Ct. R. 414(e) (eff. Oct. 1, 1971). Rule 414 provides

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that defendant and defense counsel may waive defendant's confrontation rights at a deposition

conducted under Rule 414 in a written filing. Ill. S. Ct. R. 414(e) (eff. Oct. 1, 1971) ("The

defendant and defense counsel shall have the right to confront and cross-examine any witness

whose deposition is taken. The defendant and defense counsel may waive such right in writing,

filed with the clerk of the court"). This court has held that it is error to admit evidence of such a

deposition without a written waiver. People v. Spain,

(1996). The

parties agree that no written waiver appears in the record.

¶ 22 The State argues, and defendant admits, that defendant failed to allege noncompliance with

Rule 414(e) in his opening brief. Typically, this omission would result in a procedural default of

the claim of error. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) ("Points not argued are

waived***."); Ill. S. Ct. R. 612(i) (eff. Feb. 6, 2013). In this case, however, our relaxation of the

forfeiture rule is based on a plain error affecting fundamental fairness of the proceeding. In re

Darius G.,

(2010). Furthermore, forfeiture is a limitation on the parties,

not the reviewing court.

We acknowledge that in People v. Glasper our supreme court held

that "[t]he violation of a supreme court rule does not mandate reversal in every case." People v.

Glasper,

(2009). The Glasper court reasoned that the error in question in

Glasper did "not involve a fundamental right, or even a constitutional protection."

Rather,

"[t]he error involve[d] a right made available only by rule of this court."

In this case,

however, the right in question, defendant's right to confront the witnesses against him, is a

fundamental right. Campbell,

("The right of an accused to confront the

witnesses against him is a fundamental right made obligatory on the states through the fourteenth

amendment."). Therefore, we hold it is amenable to plain-error review. Accordingly, we hold

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defendant also did not validly waive his confrontation rights pursuant to Illinois Supreme Court

Rule 414. Ill. S. Ct. R. 414(e) (eff. Oct. 1, 1971).

¶ 23 We note that our review of the entire record in this case shows there was sufficient

evidence to prove defendant guilty beyond a reasonable doubt. This finding removes the risk of

subjecting defendant to double jeopardy. See People v. Taylor,

(1979).

¶ 24 CONCLUSION

¶ 25 For the reasons stated, we reverse defendant's conviction and remand the matter for a new

trial.

¶ 26 Reversed and remanded.

¶ 27 JUSTICE CONNORS, dissenting.

¶ 28 I disagree with the majority opinion insofar as it finds that defendant’s absence from the

victim’s deposition amounted to second-prong plain error. Under the second prong of plain-error

review, the error must be so serious that it affected the fairness of the defendant's trial and

challenged the integrity of the judicial process, regardless of the closeness of the evidence.

People v. Piatkowski,

(2007). In People v. Glasper,

(2009),

our supreme court equated the second prong of plain-error review with structural error, asserting

that "automatic reversal is only required when an error is deemed 'structural,' i.e., a systematic

error which serves to 'erode the integrity of the judicial process and undermine the fairness of the

defendant's trial.' " Glasper,

-98 (quoting Herron,

). "An error

is typically designated as structural only if it necessarily renders a criminal trial fundamentally

unfair or an unreliable means of determining guilt or innocence." People v. Thompson,

(2010). The supreme court has recognized an error as structural only in a very limited

class of cases, including: "a complete denial of counsel, trial before a biased judge, racial

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discrimination in the selection of a grand jury, denial of self-representation at trial, denial of a

public trial, and a defective reasonable doubt instruction." Thompson,

.

Notably absent from this list is a defendant's right to confront the witnesses against him, let alone a

defendant's right to be present at a witness's deposition.

¶ 29 While the confrontation clause represents a preference for face-to-face confrontation, that

preference must occasionally give way to considerations of public policy and the necessities of the

case. People v. Cuadrado,

(2005). In People v. McClendon,

(1990), this court found that the admission of a witness's videotaped statement, which

defendant was not present for, did not violate defendant's right to a face-to-face confrontation with

the witness and thus did not amount to plain error. Here, as in McClendon, the victim was

unavailable to testify at trial, his deposition was taken under oath, and he was subject to

cross-examination by defense counsel. Accordingly, I would find that the admission of the

statement did not violate defendant’s right to a face-to-face confrontation with the witness and did

not amount to plain error. McClendon,

(where the pathologist was

unavailable, his deposition was taken under oath, and the witness was subject to cross-examination

by defense counsel, the admission of the statement did not violate the defendant’s right to a

face-to-face confrontation with the witness).

¶ 30 While the court in People v. Salgado,

, stated that the right to

confront witnesses is a substantial right under the second prong of plain error, there was no

accompanying analysis. Specifically, the court failed to acknowledge our supreme court's

discussion in both Glasper and Thompson, wherein it equated the second prong of plain-error

review with structural error. Additionally, the defendant in Salgado was absent from the

courtroom during certain witness testimony, which the court found was a violation of his

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confrontation rights. In the case at bar, however, it was not defendant's absence from the

courtroom that instigated this appeal. Rather it was his absence from an evidence deposition.

Moreover, the only reason why the victim was not subsequently in the courtroom at trial was due

to defendant's own wrongdoing. See People v. Stechly,

(2007) (Thomas, C.J.,

dissenting, joined by Karmeier, J.) (defendant forfeited his confrontation rights because the

witness' unavailability at trial was caused by defendant's intentional criminal act). For the

foregoing reasons, I would find that defendant's claim did not rise to the level of second-prong

plain error and affirm the trial court's decision.

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