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Commonwealth v. Parson6/17/2004
ntosh : Judge, we have no problem with that.
Foster: We'll work with everybody.
Court: That's fine. My concern is we're scheduled to be here tomorrow anyway.
McIntosh : I think they've already
Foster: I called them thinking that the case was going to be continued and had already said, -you know, that's what I was doing when I left the courtroom, and I've only been able to get one of them back on the phone.
McIntosh : I think that it would be better to wait and see if they're going to even be unavailable.
Foster: They may want to come to the trial .
Court: Okay, then I'll just get Maggie and get another trial date and we'll go from there.
Later, after the video deposition, at which Appellant learned more information relevant to Nichol's alleged inability to testify in person at trial, Appellant's trial counsel moved the trial court to prohibit the Commonwealth from introducing Nichol's video deposition at trial . The transcript of the hearing on Appellant's motion reveals that: (1) apparently neither the trial court nor the Commonwealth were cognizant of the constitutional dimensions of "unavailability," and (2) the Commonwealth never asserted Appellant's waiver as a basis for the introduction of Nichol's video deposition:
Court: What issues do we need to take up this morning?
McIntosh : I think, Judge, what we need to take up is the issue of the use of this video deposition at the trial . I think that's pretty much
Court: [Interrupting] Which video deposition is that?
McIntosh : Well, we've only taken one, and that would be of Mr. Tim Nichol .
Court : Okay. And, what's the issue about the use of the deposition?
McIntosh : Well, he has to be unavailable for the trial and I don't think that, he stated in his deposition that he was going to be on vacation through January 2nd and then would be at a national meeting from January 3rd through January 7th. And I, on my client's behalf, I don't think that that's a valid excuse for his unavailability . Someone's vacation, be it unfortunate that he would not be able to go on vacation, does not excuse him from the fact that he has to testify. If they don't want him to testify, I certainly think they've got enough other doctors to bring in, if they wanted to use them . I don't think that that constitutes unavailability .
Court: Ms. McCleod?
McCleod : Ms . Foster's going to address the Court, Judge .
Foster: Judge, under Rule 7.10, the Court is granted discretion to determine when a witness may be unavailable for trial . And we actually brought Mr. Nichol in today, if the Court has any additional concerns about his unavailability . Mr. Nichol, he testified in his deposition that he is out of town for vacation through the 2nd of January. He will not be coming in until that night, and then he's going to turn around the next day and fly out to Las Vegas? To Las Vegas.
Court: And that quote the next day, is the day the trial is supposed to start. Right?
McIntosh : January 2nd is the day
Foster: The trial starts on the 2nd
Court: Okay, then when does he get back from vacation?
Nichol : [From the audience] I will be back on Monday, the 7th .
Court : Okay, so when do you go on vacation?
Nichol: Well, the day that I was supposed to be here is the day that I'm leaving for a national meeting for our company, which would be the 3rd .
Court : Okay, so you are leaving on the 3rd to go to this meeting and then vacation after the meeting
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