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People v. Hood

Supreme Court of Illinois

September 22, 2016

TERRY HOOD, Appellee.

          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.


          BURKE, JUSTICE.

         ¶ 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.

         ¶ 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 ...

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