                                       2016 IL 118581



                                         IN THE
                                SUPREME COURT
                                             OF
                          THE STATE OF ILLINOIS



                                    (Docket No. 118581)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                           TERRY HOOD, Appellee.


                             Opinion filed September 22, 2016.



        JUSTICE BURKE delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and
     Theis concurred in the judgment and opinion.



                                         OPINION

¶1       The principal issue presented in this appeal is whether the defendant’s right to
     confrontation under the sixth amendment was violated when the circuit court of
     Cook County admitted into evidence a video deposition given by the complaining
     witness prior to trial. The appellate court held that the admission of the deposition
     amounted to plain error. 2014 IL App (1st) 113534. For the reasons that follow, we
     reverse.
¶2                                      BACKGROUND

¶3       On May 8, 2007, Robert Bishop Jr., 69 years old, was found in his apartment
     bound, gagged, and severely beaten. The defendant, Terry Hood, was arrested for
     the attack and, on July 2, 2007, charged via indictment with multiple counts of
     attempted first degree murder, aggravated battery, aggravated battery of a senior
     citizen, home invasion, and aggravated unlawful restraint.

¶4       On February 25, 2008, the State filed a motion seeking to depose Bishop
     pursuant to Illinois Supreme Court Rule 414 (eff. Oct. 1, 1971). Rule 414 allows
     the court to order the taking of an evidence deposition if there is a “substantial
     possibility” that the witness will not be available to testify at trial. In its motion, the
     State argued that such a possibility existed in this case because Bishop had
     sustained serious head injuries during the attack and his condition was likely to
     deteriorate. The motion also stated that defendant would be provided “the
     opportunity for confrontation and cross-examination of the witness.”

¶5      Defendant objected to the State’s motion, arguing that Bishop was only able to
     communicate by shaking his head yes or no. Defendant maintained, therefore, that
     Bishop’s condition would not allow for meaningful cross-examination.

¶6       On March 10, 2008, the circuit court granted the State’s motion to depose
     Bishop, with the caveat that if Bishop could only shake his head to communicate,
     the deposition would be inadmissible. The first paragraph of the circuit court’s
     order granting the State’s motion directed that the deposition take place on March
     31, 2008, at the nursing home where Bishop was then residing. The second
     paragraph of the circuit court’s order stated:

             “That the Cook County Sheriff’s Office transport defendant Terry Hood
         *** to the above scheduled evidence deposition, over the objection of the
         defendant.”

     The italicized portion of the second paragraph was handwritten. The entire
     paragraph was then scribbled over, or scratched out, by hand.

¶7       Bishop’s video deposition took place as scheduled on March 31. An assistant
     State’s Attorney and two assistant public defenders were present. Defendant did
     not attend.




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¶8         In the deposition, Bishop stated he had been in the hospital and was now in a
       nursing home because defendant had attacked him. Bishop recalled that defendant
       had hit him in the head twice with a hammer, but Bishop could not recall what
       happened after that. Bishop identified a photograph of the hammer recovered from
       his apartment as defendant’s hammer. Bishop said he struggled with defendant
       over the hammer before he was hit with it. On cross-examination, Bishop stated
       that an assistant State’s Attorney twice visited him in the nursing home and that
       photographs had been shown to him before the deposition. Bishop remembered that
       he had shared an apartment with defendant for a period of time.

¶9         Several months later, at a status hearing held on October 22, 2008, at which
       defendant was present, the following was placed on the record:

              “[ASSISTANT STATE’S ATTORNEY]: 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.

              [ASSISTANT PUBLIC DEFENDER]: I don’t believe I actually did put
          that on the record, but I did waive [defendant’s] appearance at the evidence
          deposition.

              [ASSISTANT STATE’S ATTORNEY]: Your Honor, just so you know, we
          believe that that is important insofar as the evidence deposition is concerned
          because I have recently seen the victim and I’m waiting to speak to his—I have
          spoken to the nursing home, but I do not believe that he will be able mentally to
          testify, and I do believe we will be seeking to use the evidence deposition.

              THE COURT: Okay. November 20th.”

¶ 10        On January 25, 2011, the State filed an amended motion in limine to admit
       Bishop’s evidence deposition as an exception to the rule against hearsay under
       Illinois Rule of Evidence 804(b)(1) (eff. Jan. 1, 2011). In its motion, the State




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       maintained that Bishop was unable to respond to questioning due to his injuries
       and, thus, was not available to testify.

¶ 11       On April 7, 2011, a hearing was held to determine whether Bishop’s deposition
       should be admitted into evidence. The State presented testimony from Bishop’s
       attending physician. Defendant objected to the admission of the deposition,
       contending that Bishop’s injuries were not so severe that he was unavailable to
       testify. Defendant did not raise any constitutional objection to the admission of the
       deposition.

¶ 12       Following the hearing, the circuit court concluded it was clear from the
       attending physician’s testimony that Bishop’s mental condition rendered him
       unavailable to testify. The court therefore admitted the deposition. Thereafter, the
       circuit court stated:

              “Now the issue is whether or not your client would have the opportunity to
          confront the witness and whether you would have *** the opportunity to
          cross-examine the witness.

              By way of the evidence deposition, there has been no objection raised to
          that, so my understanding is that you did have the opportunity.”

¶ 13       At trial, the jury heard testimony from neighbors in Bishop’s apartment
       building who heard arguing between defendant and Bishop before the attack,
       testimony from a witness that defendant had admitted to the crime, and DNA
       evidence that tended to implicate defendant. Bishop’s video deposition was also
       published to the jury. At the close of trial, the jury found defendant guilty of
       aggravated battery of a senior citizen causing great bodily harm. Defendant was
       sentenced to 22 years in prison.

¶ 14      On appeal, defendant argued for the first time that the admission of Bishop’s
       deposition at trial violated his right to confrontation under the sixth amendment
       because he was not present during the taking of the deposition. A divided appellate
       court agreed, finding that the admission of the deposition amounted to plain error.
       2014 IL App (1st) 113534.




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¶ 15      We granted the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1,
       2013).


¶ 16                                          ANALYSIS

¶ 17       Defendant’s primary claim on appeal is that the circuit court violated his sixth
       amendment right to confrontation when it admitted Bishop’s video deposition into
       evidence at trial. 1 Defendant acknowledges that he did not raise any sixth
       amendment objection before the circuit court and, therefore, his claim has been
       forfeited on appeal. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). Defendant
       maintains, however, that the admission of the deposition may be reviewed for plain
       error.

¶ 18        Under the plain error doctrine, a reviewing court may address a forfeited claim
       in two circumstances: “(1) where a clear or obvious error occurred and the evidence
       is so closely balanced that the error alone threatened to tip the scales of justice
       against the defendant, regardless of the seriousness of the error and (2) where a
       clear or obvious error occurred and that error is 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. Belknap, 2014 IL 117094,
       ¶ 48; Ill. S. Ct. R. 615(a). In applying the plain error doctrine, it is appropriate to
       determine first whether error occurred at all (People v. Hillier, 237 Ill. 2d 539, 545
       (2010)) because “without error, there can be no plain error” (People v. Smith, 372
       Ill. App. 3d 179, 181 (2007) (citing People v. Wade, 131 Ill. 2d 370, 376 (1989))).

¶ 19      Defendant’s claim of error rests solely on the confrontation clause of the sixth
       amendment to the United States Constitution (U.S. Const., amend. VI). 2 This


           1
             Defendant does not bring a separate challenge under the confrontation clause of the
       Illinois Constitution (Ill. Const. 1970, art. I, § 8), or argue that he is entitled to greater
       protection under that provision.
           2
            Bishop’s deposition was hearsay intended to assert the truth of the matters contained
       therein. On appeal, defendant does not challenge the circuit court’s ruling that the
       deposition was admissible as a hearsay exception under Illinois Rule of Evidence
       804(b)(1). See People v. Melchor, 226 Ill. 2d 24, 34-35 (2007) (in evaluating the




                                                   -5-
       provision, made applicable to the states through the fourteenth amendment (Pointer
       v. Texas, 380 U.S. 400, 407-08 (1965)), guarantees the right of an accused in a
       criminal prosecution to “be confronted with the witnesses against him” (U.S.
       Const., amend. VI). The confrontation clause “provides two types of protections for
       a criminal defendant: the right physically to face those who testify against him, and
       the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39, 51
       (1987). Defendant maintains that, because he was not present during the taking of
       Bishop’s deposition, the admission of the deposition at trial violated his right to
       confrontation.

¶ 20       The constitutionality of admitting an out-of-court statement at trial is governed
       by Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the United States
       Supreme Court held that a defendant’s sixth amendment confrontation rights are
       implicated at trial if the State seeks to admit into evidence statements that are
       “testimonial.” If the statements are testimonial, then their admission is only
       constitutionally permissible if the State is able to establish both that the declarant is
       unavailable to testify at trial and, in addition, that the defendant had a prior
       opportunity to cross-examine the declarant. Stated otherwise, Crawford holds that
       the confrontation clause prohibits the “admission of testimonial statements of a
       witness who did not appear at trial unless [the witness] was unavailable to testify,
       and the defendant had had a prior opportunity for cross-examination.” Id. at 53-54.
       See also Bullcoming v. New Mexico, 564 U.S. 647, 657 (2011) (“[a]s a rule, if an
       out-of-court statement is testimonial in nature, it may not be introduced against the
       accused at trial unless the witness who made the statement is unavailable and the
       accused has had a prior opportunity to confront that witness”).

¶ 21       Although the appellate court below acknowledged that the issue in this case is
       whether the circuit court violated defendant’s “constitutional right to confront the
       witnesses against him when it allowed Bishop’s video deposition into evidence”
       (2014 IL App (1st) 113534, ¶ 14), the appellate court did not apply the test set forth
       in Crawford. Indeed, the appellate court did not mention Crawford at all. This was
       error.


       admissibility of out-of-court statements, the first step is to determine whether the statement
       may be admitted as an evidentiary matter).




                                                   -6-
¶ 22        Under the supremacy clause of the federal constitution (U.S. Const., art. VI,
       cl. 2) “[w]e are bound to follow the United States Supreme Court’s interpretation of
       the Constitution of the United States.” People v. Wagener, 196 Ill. 2d 269, 287
       (2001). This means that when the Supreme Court adopts a particular framework for
       applying a federal constitutional provision, we are required to follow that
       framework, regardless of how other courts, including this one, may have
       approached the issue in other decisions. People v. Hale, 2013 IL 113140, ¶ 20.
       Accordingly, in this case, we have no discretion to follow any approach other than
       the one established in Crawford.

¶ 23       Under Crawford, the threshold question we must address to determine whether
       the admission of Bishop’s video deposition was constitutionally permissible is
       whether the deposition was testimonial. There is no question that it was, as
       Crawford itself recognized depositions as being core, testimonial statements.
       Crawford, 541 U.S. at 51-52.

¶ 24      Because Bishop’s deposition was a testimonial statement, the State was
       required to demonstrate Bishop’s unavailability to testify at trial. Id. at 53-54. That
       showing was made here. During the hearing on whether Bishop’s deposition could
       be admitted under Illinois Rule of Evidence 804(b)(1), the circuit court heard
       medical testimony from Bishop’s attending physician which established that, at the
       time of trial, Bishop was living in a nursing home and was unable to care for
       himself. In addition, the testimony established that Bishop was suffering from
       severe dementia, had no awareness of his environment, and was unable to
       communicate in any meaningful way. The record thus confirms that Bishop was
       unavailable to testify within the meaning of Crawford.

¶ 25       For Bishop’s deposition to be admissible, the State was also required to show
       that defendant had a “prior opportunity to cross-examine” Bishop. Crawford, 541
       U.S. at 53-54. A prior opportunity to cross-examine means that the defendant once
       had the opportunity “ ‘of seeing the witness face to face, and of subjecting him to
       the ordeal of a cross-examination.’ ” Id. at 57 (quoting Mattox v. United States, 156
       U.S. 237, 244 (1895)). This, Crawford states, the defendant “ ‘shall under no
       circumstances be deprived of . . . .’ ” Id. (quoting Mattox, 156 U.S. at 244).

¶ 26      In this case, defendant was never barred or prevented from attending Bishop’s
       deposition. To the contrary, the February 2008 motion filed by the State seeking to



                                                -7-
       depose Bishop expressly stated that the State was providing defendant with the
       opportunity to be present at the deposition and to cross-examine Bishop. Thus,
       from the start, defendant was on notice that he could attend the deposition if he
       chose to do so.

¶ 27       Further, the second paragraph of the circuit court’s March 2008 order for the
       deposition originally stated that the Cook County sheriff was to transport defendant
       to the deposition “over the objection of the defendant.” This paragraph was then
       crossed out by hand. From this, we conclude that defendant was fully aware that the
       deposition had been ordered to take place and was fully aware that he had the
       opportunity to be present at the deposition but that he chose, for whatever reason,
       not to attend. This understanding of the record is confirmed by the subsequent
       statements made by defense counsel in October 2009, where counsel indicated that
       defendant’s appearance at the deposition had been waived.

¶ 28       In addition, two public defenders were present at Bishop’s deposition. Both
       attorneys understood the significance of the deposition and subjected Bishop to a
       full cross-examination. On this record, we conclude that defendant was afforded a
       “prior opportunity to cross-examine” Bishop as required under Crawford.

¶ 29       Because the State established both the unavailability of Bishop at trial and that
       defendant had a prior opportunity to cross-examine Bishop, the admission of the
       video deposition did not violate Crawford. And, because there was no error in the
       admission of the deposition, there was no plain error.

¶ 30       Defendant also contends, however, that the admission of Bishop’s deposition
       violated his right to be present under the due process clause of the federal
       constitution (U.S. Const., amend. XIV). Defendant again acknowledges that he did
       not raise this claim in the circuit court but argues that it may be reviewed for plain
       error.

¶ 31       The due process right to be present is considered a “lesser right,” meaning that
       the right is violated only when the defendant’s absence results in the loss of an
       underlying substantial right or in an unfair proceeding. People v. Bean, 137 Ill. 2d
       65, 80-84 (1990). Defendant contends that, in this case, he was deprived of the
       substantial right to confrontation because he was absent from Bishop’s deposition
       and that deposition was subsequently admitted into evidence at trial. Thus,




                                               -8-
       defendant asserts, his due process rights were violated and plain error occurred. We
       disagree. As noted previously, defendant’s confrontation rights were not violated in
       this case. Thus, there was no violation of an underlying substantial right and,
       necessarily, no plain error.

¶ 32       Finally, defendant contends that the circuit court violated Illinois Supreme
       Court Rule 414(e) (eff. Oct. 1, 1971) when it admitted Bishop’s deposition into
       evidence at trial without having obtained a statement from defendant, in writing,
       that he did not want to attend the deposition. Rule 414(e) provides:

          “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.”

       Once again, defendant acknowledges that he did not raise this claim in the circuit
       court, and he asks us to review the claim for plain error.

¶ 33       Defendant has not cited, and we have not found, any authority which holds that,
       under the confrontation clause, a defendant who did not attend a deposition must
       have waived, in writing, the opportunity to be present in order for the deposition to
       be admissible at trial. The Rule 414(e) written waiver is thus not a constitutional
       requirement. Instead, the written waiver helps insure that the defendant is given
       notice of and provided with the opportunity to confront and cross-examine the
       witness being deposed. In this way, if the State subsequently seeks to admit the
       deposition at trial, the defendant’s rights under Crawford will have been secured.

¶ 34       Here, although the circuit court erred in not obtaining the written waiver, it is
       clear that defendant knew that the deposition had been ordered to take place and
       knew that he could attend the deposition if he chose to do so. Defendant was thus
       provided with the opportunity for confrontation at the deposition as Crawford
       requires. Because, on this record, defendant’s rights under Crawford were
       protected, we conclude that the admission of Bishop’s deposition without the
       written waiver of Rule 414(e) did not “tip the scales of justice against the
       defendant,” nor did it affect “the fairness of the defendant’s trial” or challenge “the
       integrity of the judicial process.” People v. Belknap, 2014 IL 117094, ¶ 48.




                                                -9-
       Accordingly, there was no plain error.


¶ 35                                    CONCLUSION

¶ 36      For the foregoing reasons, the judgment of the appellate court is reversed. The
       judgment of the circuit court is affirmed.


¶ 37      Appellate court judgment reversed.

¶ 38      Circuit court judgment affirmed.




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