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Commonwealth v. Parson6/17/2004
ors" (or "the medical doctors") with the understanding that those witnesses "wouldn't have to come back for trial ." Later, after the Commonwealth indicated that a physical therapist witness (Nichol) had expressed an interest in "doing the video deposition" on a future occasion, the Commonwealth asked the trial court whether "it [would] be possible . . . to just work it out with the Court, when we come back and use the courtroom, to take the deposition?" and counsel responded "we have no problem with that." Unlike the earlier discussion concerning "the doctors, " however, there was no warning to Appellant, on the record or otherwise, that taking Nichol's video deposition would excuse him from testifying at trial, and Appellant's trial counsel specifically noted that the "wait and see" approach made the most sense because it was not clear whether the witnesses were "going to even be unavailable ." Thus, if we are faithful to the presumption against waiver that United States Supreme Court jurisprudence requires us to apply, we should construe Appellant's trial counsel statements as an agreement only to take Nichol's deposition in the event that Nichol was unable to testify in person at trial - not, as the majority interprets those statements, as an agreement that Nichol's video deposition could be admitted at trial .
Of course, it is unnecessary to devote a great deal of energy to interpreting the scope of Appellant's trial counsel's agreement because it is crystal-clear from the video record that Appellant's trial counsel did not engage in any consultation with Appellant on November 6, 2001 before counsel agreed to take Nichol's deposition . At no point does trial counsel ever lean over to Appellant to inform him of what such an agreement would entail or to solicit his input on the decision. It is also worthy of note that although the trial court had previously verified with counsel that the request for a continuance was the product of consultation with Appellant (presumably to verify that the waiver of Appellant's right to a speedy trial was Appellant's own), i .e . , "I assume you've talked to your client about it, your client knows you are asking the Court to do this[,]" the trial court made no such effort to determine whether Appellant gave his consent for his counsel's agreement to take the video depositions . Under prevailing Sixth Circuit jurisprudence, any agreement made by Appellant's trial counsel could not prevent Appellant from asserting his constitutional right to confront Nichol.
Of course it is undeniable that Appellant was present when the parties actually took Nichol's video deposition, and an argument can be made that his acquiescence in his trial counsel's actions indicated his waiver of his right to confront Nichol. However, "we `do not presume acquiescence in the loss of fundamental rights.'" And, in the context of this case, the mere fact that Appellant participated in the taking of Nichol's video deposition does not come close to demonstrating that Appellant had knowingly and voluntarily waived his confrontation rights at trial . There is nothing in the record to suggest that Appellant had ever been informed that taking Nichol's video deposition would forfeit his right to confront Nichol at trial . In fact, Appellant's trial counsel's service of a subpoena upon Nichol following the video deposition and his subsequent motion to prohibit the introduction of the video deposition reflect that counsel himself believed that the admissibility of the deposition would be subject to a finding that Nichol was unavailable to testify in person at trial, and we certainly have no reason to suspect that he counseled Appellant otherwise. Without evidence that Appellant was cognizant of the nature
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