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Commonwealth v. Parson6/17/2004
." Carter, 782 S.W .2d at 599. This obviously conflicts with our reading of Zerbst. Moreover, the Kentucky Supreme Court made statements in an opinion decided the same day, Dean v. Commonwealth , 777 S .W .2d 900 (Ky. 1989), that would lead to precisely the opposite result from that reached in Carter:
We hold that because the right to be present and to confront is personal to the accused under Section 11 of the Kentucky Constitution, and more particularly under [Ky.R.Crim .Proc.] 7 .12, only the defendant can waive this right. The waiver must be sufficiently clear "as to indicate a conscious intent." Powell v. Commonwealth , 346 S.W.2d 731, 734 (1961). . . . ppellant's counsel waived appellant's right to be present at the depositions of the two prosecution witnesses . There is no indication in the record that it was appellant's conscious intent to waive this right and his consequent right to cross-examination. Counsel's waiver being ineffective, there was no waiver. . . . Appellant was not present ; nor was he afforded the right to confront and cross-examine the witnesses called to testify against him.
Id . at 903 . We can discern no reason why a different standard was used in deciding Carter's fate .
In other words, "a waiver cannot be based on statements made by a defendant's lawyer who has not first consulted with his or her client[,] and a criminal defendant's constitutional rights of confrontation can be waived only by the personal consent of the defendant - although the consent itself can be communicated either expressly, e.g., in an on-the-record colloquy, or by conduct, e .q ., through informed acquiescence in counsel's agreement to the admission of an out-of-court statement.
In the case at bar, the majority suggests that Appellant acquiesced in the waiver of his right to confront Nichol when he responded " hat would be fine, your honor." However, this response was to a somewhat meandering "question" from the trial court that touched upon (1) Appellant's past belief that the Commonwealth's plea offer was unreasonable, (2) the trial court's past and proposed future communications with the Commonwealth regarding the possibility of obtaining a new plea offer that Appellant might find more palatable, (3) the fact that, if the Commonwealth extended a new plea offer to Appellant, it would be his choice whether to accept the offer, to make a counter offer, or to reject further plea negotiations, and (4) that if the parties were "too far apart" in the plea negotiations, the possibility of deposing "the doctors" the next day, but setting the case itself for trial by jury on a future date. Based on the multitudinous nature of the "question" and other concerns developed later in this opinion, I do not believe it is reasonable to characterize Appellant's affirmative response as an express, knowing, and voluntary waiver of his right to confront Nichol at trial . The majority also hangs its hat on what it paraphrases as Appellant's trial counsel's agreement "that the testimony of medical witnesses could be presented by deposition." Given that "`courts indulge every reasonable presumption against waiver' of fundamental constitutional rights" however, I believe that it is necessary to engage in a more-exacting scrutiny of what exactly Appellant's trial counsel agreed to do before we even reach the issue of the validity of counsel's purported waiver.
In my view, the majority opinion adopts an overly-broad and factually-suspect interpretation of Appellant's trial counsel's statements . My review of the record, which can be verified from the above verbatim recitation of it, reveals that Appellant's trial counsel first agreed to take the video depositions of "the doct
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