good morning ladies and gentlemen we'd like to welcome our participants of course in our guests here this morning our first case the morning is one one eight five eight one people of the state of illinois versus terri would be ready to proceed right now the people requested this evidence deposition of mr best shot due to the traumatic brain injury that he suffered at the hands of the defendant the defendant beat him over the head repeatedly with a hammer aside from other injuries that he received this beating on the head render him unable to communicate in the way that he was able to so the people anticipated that we made need to preserve his evidence for trial and do an evidence deposition so when we motion the court to do this evidence deposition in the deposition or in the motion we were ready willing and able to have the defendant present with us deposition at the nursing home w victim resided and after filing at the defendant his counsel object or excuse me waived his presence and at the deposition however his counsel was present and a thorough cross examination was done of mr best shop who if you've watched the d v d was very limited in his ability to speak proceed though yes does the record at all indicate whether the defendant himself chose not to attend or even knew about the deficit the record indicates your honor that the defendant was present when the people filed their motion and asked for the step a session there is no waiver by the defendant on the record only by his counsel which was done six months after the deposition the counsel put his counsel put on the record that she was waiving us presence the prosecutor made statements that could lead one to believe that there were off the record discussions that defended his counsel did not wish to be there but there was no written waiver procured from the defendant however when this after taking the deposition and six months later after the defend defendant put his objection on the record another three years passed and the state was ready to go to trial on this case and wanted to use this evidence deposition at trial because mr bishop's state ha considerably we actually put on a medical professional that said it's much that over the last three years his ability to speak had gone way down he could no longer take care of himself in any way so we asked to have it admitted at trial at that point the condition you think that's enough to get a room were slow well your honor actually people versus law ten in that case this court was able to actually look at the record and as you know there was a one fifteen ten hearing where the defendant was not present his counsel said i didn't have him brought over i didn't bring that i didn't even bring him over so they did the one fifteen ten motion with the victim and her mother without the defendant's presence the next day at trial the victim's mother testified as to the victim's potential of lying and her motive to lie about the entire case is a sexual assault case and this work look at the record and say that his absence actually made a difference been present at the one fifteen ten hearing he could have added this motive to lie which clearly came from him and in fact whole all those hearsay statements of the victim would have probably been rendered it admissible thus changing the total outcome of his trial we don't have that here here the defendant has never shown how his absence at the deposition would have changed a thing you speaking about prejudice here but take us stuff back just so we're clear what is the state position here can defense counsel waive the right of the defended the president of the evidence of this and or is this a personal right of the defendant with the state's position our position or is that his client's presence at a critical stage in the trial that that that it doesn't end there or they have the defendant has to show prejudice at that point because due process clause violation he has to show prejudice with his presence have changed anything and again because he wouldn't have gotten the results that he wanted because the evidence here was not closely balance and anyway he is arguing first promptly in error today and has his opening brief or excuse me his his br but he has never argued in the past and let me stress again that had he objected at trial this would have all of these purported this purported error would have been subject to a harmless error standard consulate defense counsel waived his his presence and isn't this it at a critical stage for the due process right to be present for presents for the purpose of just being at the deposition isn't that a due process right it is but even if he has counsel erred in waiving his presence and he didn't waive it but doesn't and there has he has to show defendant has to show that he that his presence would have made a difference and he's never shown that and that's because mr bishop was thoroughly cross examined there's only so much mr bishop could say you said he was hit over the head with a hammer by the defendant and that's the last and he remembered defense counsel questioned him extensively on how many times he spoke to the prosecutor before the evidence deposition and every line of cross examination was covered and again it was the defendant's burden to show how he he would have made a difference and he's that he has never argued that and has never been able to show that you know is your argument that could to get him there the court order that's in the record shows that we wanted him transported from the jail to the evidence deposition and then on the order it's crosstown it's over defendants objection and then the entire think portion was crossed out we were going to have him brought over so that is why our position is the error is not clear that he didn't waive his presence because the record seems to suggest there was an off record conversation that he did not wish to be present while based on the record it's hard our position is he can't meet his burden that he did not waive his presence there and even if he did it it's not subject to  affect the trial from beginning to end and he's never even alleged that it went right from these three errors the sixth amendment and the right to presence and the rule for fourteen and those three and just made a per se reversal under error without considering whether they were candid structural errors we didn't address rule for fourteen obviously this court has adopted a rule to avoid this problem yes to put everything in writing so the record is clear as to what case the defendant tried to say it's her say error may go right to second crime clean air but this court rejected that saying no it's a trial air and a trial air usually falls under a harmless error standard and if it falls under harmless error had the defendant objected he shouldn't be allowed to argue a second point plain error because he failed to object because that gives him a windfall for not objecting and this court has said time and time again the importance of objecting defendant's failure to object is what would guide us here and his failure to object does not entitle him to second prong claim error because he can't like i said under the law to case you can't show is trial was fundamentally unfair because mr bishop was thoroughly cross examined he was talked about his of philippi to recall events and the the failure to tender piece of paper didn't  said this is also a rule for fourteen error and then defendant said in his reply brief we're not we're not concerned with that we're not that's not our claim rule for fourteen areas not her claim so the appellate court also erred by granting him relief on something that he didn't claim and therefore never had to show plane air he never had to prove it which is his burden are you really arguing invited here not argue invited error but that the appellate court should should not consider a claim that was not raised by the substantially not one year but they took three together and said that's plain error but if you have three errors that always amount to harmless error then in the end you're still going to have harmless error you're not going to are prejudiced standard you're not going to have a second on clean air and even under first crime this defendant would fail because of the over the evidence was not closely balance taking aside mr bishop's d v d we also evidence from a neighbor who heard the defendant's voice was able to identify it scolding the victim saying i'm going to get you and then mr a defendant in a third party admission after the fact admitting to tying up gagging and slitting the throat believe i would be speculating if i said it was a trial strategy i don't know if the record clearly indicates that i mean i think it could be and the fact that he never objected and then when it came to trial in this piece of evidence was going to be admitted he didn't object based on his  absence and this is over the course of three years and like i said that the doctor testified that mr bishop's you know brain capacity declined over those three years and he immediately attracted they could have read on the evidence deposition with his presence there but whether it was trial strategy i mean these two men knew each other i know that would be just me speculating i snacked there from the so again based on my arguments today and arguments  and reinstate the defendant's connection thank you thank you very much participate in cross examination of the witness provide potential lines of inquiry or look upon the witness who was accusing him of the charge the fans and the witness did not have to look upon mr hood when making that accusation this deposition was admitted at mr ho due process rights the critic the president critical stage and this court's rule for fourteen under each and every one of these theories clear air occurred and given the importance of these rights and the importance of this witness  the right to cross examination and the right to face to face confrontation this case involves the latter which the court described as the core right of the confrontation clause the court said it will never  their occurs when the violation is so serious that it affected the fairness of his trial and challenge the integrity of the judicial process in cloyd united states supreme court said that the absence of face to face confrontation affects the the integrity of the judicial process and the fairness of the trial so that language and cloying involving face to face confrontation  equated plainer with with structural error because it used language essential to the integrity of the judicial process under that theory this this error also must be considered plain there because the quote court side the violation of face to face confrontation requiring a defendant in a witness to face each other trial the fairness of the truth seeking process is enhanced and by requiring the defendant to be present for cross examination the defendant is able to observe the demeanor of the witness is cross examination by suggesting lines of inquiry and it makes it much more or less likely that the witness will be able to lie and if the witness does choose to lie he does it less convincing so objection in defense counsel said i told him not to bring in how does that factor into the analysis if at all but that the question of whether there's a valid waiver operates and in a couple different ways for purposes of confrontation cla it's shows that there was never any indication that put knew of this right or that he waived it personally without something on the record that indicating it was aware of the right there can't be available later and the state makes  able to show heartlessness but the standard is harmless beyond a reasonable doubt and the standard is not whether it's presence at the at the deposition what changed anything because oysters as i would tell us that would be too speculative the question is whether the introduction of a deposition that was taken outside of his presence would have changed the trial under the harvest going to reasonable doubt standard the statement never been able to prove that it doesn't it doesn't argue that good now with second prong point where the question becomes is the air serious and i would argue that unlike crawford where there's there's not a complete up provision of face to face confrontation and in i believe in the patterson case it was not the accuser here when there's there's like a one play this court presumes prejudice because this court has already found in the defendant has the burden and that's the best the big distinction when the heirs preserve the state has the burden of proving they are harmless when there's not preserve the defendant has the burden and so here terry hood has the burden of proving that this was a serious error and at that point under the second prong the court resumes prejudice so it's really a distinction that's maybe on the surface  the rule was designed to protect the defendant's confrontation rights and going back to this question of whether the air was forfeited or not or whether an objection would have saved us all from being here  waive that right in writing so while the state cites thompson for the proposition that rule violations aren't second prop plane air this court in thompson said that the full for thirty one p at admonishment says that constitutional rights must be in knowingly knowingly waived so there can't be a valid waiver if there is not also a and informing a formal informing of the defendant of those been a written waiver in this case i think i don't think i could have made its argument before this or the state is are you in their counsel extensively cross examined the  victim witness at the deposition and that you haven't alleged or shown any prejudice by the vendor not being there and i think you said a moment ago that you don't need to show prejudice and that the prejudice to th it is the introduction of the deposition is that your position it doesn't matter whether it made any difference that he would be there or not well it is the court in cloisters as i was specifically stated it would be completely speculative to assume that the defendant presence would have altered that proceeding the court you upon the centuries of evidence that defendant's presence could have affected the outcome but it's not require the time and with regard to the voice recognition testimony defense counsel severely impeach that witness by showing that that witness did not say that you heard terri was voice until long after the fact either pran the score confined playing air under the confrontation clause violation which again the state while in its opening brief argued that this might not have been a confrontation clause asian because there was cross examination has speculation argument with respect to what would have occurred of the defendant was present but that was his right is right was to be present his right wasn't to stop the deposition the deposition would have gone forward either in this case as it did without his presence or with his presence right so how can how can we then look at merely the fact that it took place which was going to take place anyway in determining whether or not the defendant was prejudiced well again i think you presume prejudice because it took place in the defendant's absence had the defendant objected obviously he would have he would have been taken there so we don't we don't look at things which is what type of cross examination went on by his counsel or anything like that coyle makes clear that the red cross examination is completely separate from the right to face to face confrontation no question but i mean i'm i'm talking about the prosecute him a nation in light of looking at them for your prejudiced analysis rather than merely it took place which was going to take place anyway well again this court presumes prejudice under the second prong and and in stuart the case  and it was absent from the one fifteen time hearing this court once it found the due process violation of the right to be present at a critical stage then found that second prong cleaner just by virtue of the fact that it was a constitutional violation  think i don't think the prejudice analysis can be done based on what would happen has a defendant been there and this isn't this makes it all the more important for this court to send a message  had had this all taken place before the deposition that they could have either gotten out of on its way for or they could have made the arrangements as the state has indicated that it was willing to make and get the defendant to the deposition and then you know the deposition would have happened and it would have been there and who knows how mr bishop would have reacted just maybe mr bishop would have said hey i thought it was terry but it's not that i or you know maybe mr bishop would have changed his mind  some other way maybe mr hood had ways to help as a defense attorney poke holes in what mr bishop was saying so you know i can speculate as to the prejudice but of course as not to do that  repeatedly relying on oil and pray the defendant objected in those cases the defendant objected in those cases they were not subject to plain error and we have a totally different situation here where the defendant by while this happens and said nothing even when this case this was coming and to evidence didn't object on the grounds of his absence and only way to tell the appellate court to object therefore giving him a better position by not objecting and had a talk what would be the motivation for a defendant to object if he can just step back not object go to the pulp and say hey this is a constitutional violation i get a new trial i don't have to show that this is a kinda structural error i can just say this is an important witness so i get a new trial this court has never made it taken witnesses apart and say these are important gauge against the other witnesses that is why a prejudiced standard is the appropriate standard because we can look at it and say hey we can weigh this with the other ones if it were true second prime plane do that because the prejudice is assumed from the beginning to the end like a right to not having a counsel of your choice to being denied a jury trial it's automatically prejudice and you know we can't look at this and say that because we can look at the other evidence that is the difference here now trial errors and a rule violation is a trial error and to send a message to to any defendant that if you if the rule is not followed you get  objection would have changed this whole case and as far as our acquiescence argument that the defendant is claiming that we have waived that was as you can see in my brief that was simply laying out the facts what happened in this case and  just kind of sat idly by while this case was proceeding he had no problem filing motions complaining about his lawyer had no problem doing that but he never complained about this violation or no none of these violations