Commonwealth v. Parson6/17/2004
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McIntosh : That's correct. Ms . Nunn should be back on the 19th . She had surgery last Thursday, I believe it was and will be available on the 19th. As far as the other issue, I'm supposed to know something more by tomorrow afternoon at 3 :00. As I have told the Court, I have not told Ms . McCleod . I will be happy to do so . I just don't want to do it on the record .
Court : Obviously, [Assistant Commonwealth's Attorney] Ms. McCleod, I know it puts you in an awkward position, but I assume the Commonwealth, at least for the record, objects to any continuance .
McCleod : Judge, it does put me in an awkward position, but I just want to, for the record, and I feel it's important, not for today's [unintelligible], but in case the case is continued and we have another date, the Commonwealth is objecting to this continuance . . . . The other thing, I just want to note for the record so the Court will be sensitive to this, if we come back again, is that I have three doctors in this case . The medical testimony is going to be important in this case . I have three medical doctors, Judge, that have cleared their calendar now for the second time. They've shifted patients, or they've changed their shift or done something so in fact that they are free to testify at the Commonwealth's disposal tomorrow. Again, for a second time, I have now to call them and tell them that they now have wasted another day where patients won't be treated and that they, I don't know what they do . My eyewitnesses here today are not paid when they leave work . I have four witnesses, they have again taken another day, come to court, some witnesses have been here four times and are not paid to come and are now going to be told they need to come back another time.
McIntosh : [Interrupting, during a pause] Judge, if
McCleod : [Interrupting] If I could just finish .
Court : Okay, Ms . McCleod finish up and then we'll talk about what we need to do about this.
McCleod : Thank you, Judge . As to Ms . Nunn, I don't, the only person she has even talked to is one witness who said she didn't know anything . And I would be able to - the Commonwealth could stipulate that Ms. Nunn doesn't know anything, the witness for the defense attorney. And I don't know what the medical condition is and I want to be sensitive to that but if it's possible, I don't know if it's possible, if we could roll this case to tomorrow in the event that Mr. McIntosh is able to continue, if he's going to be at work tomorrow, and we could try this case, roll it at least to tomorrow.
Court: Well, I guess first of all Mr. McIntosh, is that an option, to roll the case one day?
McIntosh : Um, Judge, I've expressed what my concern is. If the Court wants to roll this until tomorrow then that's the Court's decision. I would prefer to pass it a week, but if that's -
Court: Well, there is no passing it a week. As you all know, if we get a new trial date, you are looking at February at the earliest would be a new trial date. The Court has several concerns.
McIntosh : If I could address some of the things that were stated
Court: You don't need to because if you want a continuance and -given the medical reasons, the Court's going to grant the continuance . I would do it for any attorney. I don't think there's any need to discuss that further.
Regarding the merits of the issue addressed in Part IV of the majority opinion, I agree completely with the majority opinion's observation that " bviously, Nichol was not 'unavailable' in the constitutional sense." And, I hardly need mention that constitutional unavailability is an absolute pre
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