                               Illinois Official Reports

                                      Appellate Court



                           People v. Hood, 2014 IL App (1st) 113534



Appellate Court          THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                  TERRY HOOD, Defendant-Appellant.



District & No.           First District, First Division
                         Docket No. 1-11-3534



Filed                    October 6, 2014
Rehearing denied         October 30, 3014



Held                       Defendant’s conviction for aggravated battery of a senior citizen was
(Note: This syllabus reversed and the cause was remanded for a new trial, where
constitutes no part of the defendant’s counsel waived defendant’s appearance at the evidence
opinion of the court but deposition of the victim but there was nothing in the record showing
has been prepared by the that defendant waived his right to appear at the deposition, and under
Reporter of Decisions the circumstances, defendant proved that plain error occurred by
for the convenience of showing that he did not knowingly or voluntarily waive his substantial
the reader.)               right to confront the witness against him.




Decision Under           Appeal from the Circuit Court of Cook County, No. 07-CR-14515; the
Review                   Hon. Lawrence E. Flood, Judge, presiding.




Judgment                 Reversed and remanded.
     Counsel on                Michael J. Pelletier, Alan D. Goldberg, and Shawn O’Toole, all of
     Appeal                    State Appellate Defender’s Office, of Chicago, for appellant.

                               Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                               Michelle Katz, Kathleen Warnick, and Margaret G. Lustig, Assistant
                               State’s Attorneys, of counsel), for the People.




     Panel                     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 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. Rs. 603, 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



                                                    -2-
     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
     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
     evidence deposition at any of the above hearing dates. On October 22, 2008, defendant, APD
     Boughton, and ASA DeDore 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


         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.

         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.

                                                   -3-
               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 not to 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.
¶ 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 he 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, 215 Ill. 2d 167, 178-79 (2005); see also Ill. S. Ct. R. 615(a) (“Any
       error, defect, 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, 235 Ill. 2d 478, 495 (2009). Defendant must first,
       however, show that an error occurred. People v. Hillier, 237 Ill. 2d 539, 545 (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,


                                                    -4-
       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, 194
       Ill. 2d 40, 56 (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. Id. at 60.
¶ 18        Confrontation errors are constitutional violations, but, as with other rights a defendant
       holds, he or she may waive such a right. Id. at 61; People v. Stroud, 208 Ill. 2d 398, 402 (2004).
       Although constitutional rights may be waived, “[t]here is a presumption against the waiver of
       constitutional rights.” People v. Campbell, 208 Ill. 2d 203, 211 (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.” ’ ” Id. (quoting Brookhart v. Janis, 384 U.S. 1, 4
       (1966), quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Our supreme court has
       explained: “ ‘ “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, 208 Ill. 2d at 403 (quoting People v. Johnson, 75 Ill. 2d 180,
       187 (1979), quoting Brady v. United States, 397 U.S. 742, 748 (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 an 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, 208 Ill. 2d at
       211; Stroud, 208 Ill. 2d at 403. Such a waiver must also be shown to be an abandonment or
       intentional relinquishment of a known right. Campbell, 208 Ill. 2d at 211. Based on the record
       before us, we cannot say the requirements of a valid 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.



                                                   -5-
¶ 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, 235 Ill. 2d 478, 489 (2009).
       Prejudice is presumed under the second prong of the plain-error doctrine due to the importance
       of the right involved. People v. Thompson, 238 Ill. 2d 598, 613 (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, 208 Ill. 2d 203, 211 (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, 137 Ill. 2d 65, 82 (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 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, 285 Ill. App. 3d 228, 240 (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., 406 Ill. App. 3d 727, 732 (2010). Furthermore, forfeiture is a limitation on the
       parties, not the reviewing court. Id. 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, 234 Ill. 2d 173, 193 (2009). The Glasper court reasoned that the error
       in question in Glasper did “not involve a fundamental right, or even a constitutional
       protection.” Id. Rather, “[t]he error involve[d] a right made available only by rule of this
       court.” Id. In this case, however, the right in question, defendant’s right to confront the
       witnesses against him, is a fundamental right. Campbell, 208 Ill. 2d at 211 (“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 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).



                                                    -6-
¶ 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, 76 Ill. 2d 289, 309-10 (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, 225 Ill. 2d 551, 565 (2007). In People v. Glasper, 234 Ill. 2d
       173 (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, 234 Ill. 2d at 197-98 (quoting
       Herron, 215 Ill. 2d at 186). “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, 238 Ill. 2d 598, 609 (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 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, 238 Ill. 2d at 609. 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, 214 Ill. 2d 79, 89 (2005). In People v. McClendon, 197 Ill. App.
       3d 472, 481 (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, 197 Ill. App. 3d at 483-84 (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, 2012 IL App (2d) 100945, 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

                                                    -7-
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
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, 225 Ill. 2d 246, 331 (2007)
(Thomas, C.J., dissenting, joined by Karmeier, J.) (defendant forfeited his confrontation rights
because the witness’s 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.




                                            -8-
