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Commonwealth v. Parson6/17/2004
condition to the admission at a criminal trial of an out-of-court testimonial statement. Accordingly, "unless petitioner did actually waive his right to be confronted with and to cross examine th witness[ ], his federally guaranteed constitutional rights have been denied ." Therefore, the dispositive issue in this case is whether Appellant waived his right to confront Nichol at trial . We cannot presume a waiver of Appellant's Confrontation Clause rights from a silent record . Thus, we must examine the record and evaluate "the facts which allegedly support the waiver" in accordance with the relevant constitutional standards, under which " here is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was `an intentional relinquishment or abandonment of a known right or privilege . In addition, " he determination of whether there has been an intelligent waiver . . . must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." The videotaped record in the case reveals the following :
Court:. . . Depending upon what's going on medically, if these doctors are available tomorrow, one option would be to take video depositions of them. They could come into court, they could take video depositions and that way their testimony would be secured, they wouldn't have to come back for trial . That would be one option at least as to the medical doctors . The Court realizes that it's an inconvenience for the prosecuting witnesses, that's just something we have to deal with all the time. . . . . . I think maybe counsel and I need to talk off the record about what where exactly Mr. McIntosh, you stand with medical things to see at a minimum if these doctors can be deposed tomorrow to take care of that.
McIntosh : I would be willing to do that, Judge . That's, I understand Ms . McCleod's issue with the doctors and certainly they have schedules that are just like ours . If that was to be done tomorrow, I can do that .
Court: [To Appellant] I understand that you thought that their offer was too high, and I talked to the Commonwealth about possibilities of what a jury could do, what they could not do, and tried to get it in a range where we thought that it might be negotiable, so I will at least talk to them briefly and see if we are even, and give you a number, and then you can just decide, if it's a number that you can either accept or come back with a reasonable counter offer, we can talk more. If not, then we will at least get these doctors deposed tomorrow and the next trial date, we'll let a jury decide the whole thing .
Parson: That would be fine, your honor.
The court then went off the record and the parties discussed the possibility of a negotiated plea, but apparently were unable to reach a mutually-agreeable disposition . The trial court then reconvened the proceedings on the record and continued the discussion with Assistant Commonwealth's Attorney Foster:
Court: It's my understanding you all at least bring in the doctors tomorrow and take video depositions to preserve their testimony.
Foster: Your honor, I'm coordinating the medical proof in this case and I'm going to try, what I'm going to do is basically give them the option, if that's okay with the Court, give them the new trial date . I know one of the, the physical therapist, would like to do the video deposition but he asked if we could have it another day. Would it be possible for me to just work it out with the Court, when we come back and use the courtroom, to take the deposition?
McI
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