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Commonwealth v. Parson6/17/2004
fundamental constitutional rights . Third, the majority opinion proceeds with optimism reminiscent of Charlie Brown's inexplicable faith that his placeholder, Lucy, will break form "the next time" and keep the football in place rather than yank it away at the last second when it bases its "waiver" finding upon the same legal conclusion - that counsel can unilaterally effect such a waiver - for which the Sixth Circuit "took us to the woodshed" a decade ago in Carter v. Sowders. And, fourth, although it is black-letter law that the right of confrontation secured by the Sixth Amendment is "basically a trial right[ ]" the majority employs a harmless error analysis that appears to render harmless the introduction at trial of any videotaped deposition as long as the defendant had an opportunity to cross-examine the witness at the deposition itself. Suffice it to say that I disagree with the majority's view that Appellant's trial counsel's agreement to depose Nichol waived Appellant's constitutional rights of confrontation or that Appellant acquiesced to a waiver. Accordingly, consistent with my consistently-held position that any waiver of important constitutional protections must come from the defendant himself or herself, I dissent in part as to Appellant's Second-Degree Assault conviction, which I would reverse and remand for a new trial because there is no evidence in this record to suggest that Appellant himself knowingly, voluntarily, and intelligently relinquished or abandoned his right to confront Nichol at trial.
Before I elucidate further regarding the concerns that made my "short list," however, I feel the need to clarify the record . The majority opinion states :
On the morning of the second scheduled trial date, November 6, 2001, Appellant again requested and was granted a continuance, this time because defense counsel's investigator, who might be called as a witness, was ill (the defense counsel's investigator did not testify when the trial was finally held), and because defense counsel might possibly have a medical problem as well.
Although Appellant's trial counsel, Robert D . McIntosh ("McIntosh") cited the unavailability of a defense investigator as one reason for his request for a continuance, his written motion also stated that " counsel for the defendant will be potentially unavailable one day of the week of November 5 - November 9, 2001 [,J" and his affidavit attached to the motion explained that "I, the attorney for Mr. Parson, will be potentially be unavailable due to a personal medical condition which will require further medical tests during the week of November 5 - November 9 ." The majority opinion grudgingly mentions this alternative basis although the record clearly reflects that the trial court granted the requested continuance primarily because of defense counsel's medical concerns:
Court: We have talked several times this morning off the record . This is the first time we have been on the record . And Mr. McIntosh, you've tendered to the Court this morning a motion to reassign the trial date and first of all, I assume you've talked to your client about it, your client knows you are asking the Court to do this.
McIntosh : Yes . I have your honor.
Court: Do you want to address your motion on the record?
McIntosh : To a certain extent, yes, but to some extent as I have expressed this morning, I don't want to .
Court: And the Court understands that and I think counsel do also, but as I understand it, you are asking the Court to continue the case for trial both because an investigator from your office is not available and also because of some medical tests that you have to go through
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