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
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
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
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
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 ...