Commonwealth v. Parson6/17/2004
respect during the short transit from the emergency room to the laboratory.
IV. WITNESS DEPOSITION .
Three medical doctors, Drs . Peter Latino, David Zhou, and George Rodgers, and a licensed physical therapist, Timothy Nichol, testified for the Commonwealth . The first scheduled trial date was August 16, 2001 . On the morning of trial, Appellant requested and was granted a continuance after the trial court granted the Commonwealth's motion to amend the indictment. On the morning of the second scheduled trial date, November 6, 2001, Appellant again requested and was granted a continuance, this time because defense counsel's investigator, who might be called as a witness, was ill (the investigator did not testify when the trial was finally held), and because defense counsel might possibly have a medical problem as well. The prosecutor objected on grounds that this was the second time the medical witnesses had been subpoenaed and their medical practices disrupted . The trial court inquired whether the parties could agree to present any or all of the medical testimony by deposition and defense counsel (in the presence of Appellant) readily agreed . In response to a statement by the trial judge that if a plea agreement could not be negotiated, they would discuss deposing the doctors and setting the case for trial at a future date, Appellant, himself, responded, "That would be fine, your honor." A new trial date was scheduled for January 2, 2002.
On November 21, 2001, the Commonwealth took the videotaped deposition of Timothy Nichol, the licensed physical therapist. The deposition was taken in the courtroom before a special judge who presided due to the illness of the regular judge. Appellant and his counsel were present and counsel was afforded and exercised the right of cross-examination . In addition to testifying to the nature and extent of the victim's injuries and his treatment thereof, Nichol stated under oath that he had made arrangements to be in Minnesota during the Christmas holidays from December 22 through January 2, and in Nevada for a company meeting from January 3 through January 7. At the conclusion of the deposition, defense counsel served Nichol with a subpoena to appear in person at trial on January 2, 2002. At a hearing on December 20, 2001, the regular trial judge quashed the subpoena and Nichol's testimony was presented to the jury in the form of the videotaped deposition.
The Confrontation Clause of the Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to confront his accusers at trial. California v . Green, 399 U .S . 149, 157, 90 S .Ct. 1930, 1934-35, 26 L.Ed .2d 489 (1970) (" t is this literal right to 'confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause ."); Barber v. Page , 390 U .S. 719, 725, 88 S .Ct. 1318, 1322, 20 L.Ed .2d 255 (1968) ("The right to confrontation is basically a trial right."). "Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine ." Crawford v. Washington, U .S . , 124 S.Ct. 1354, 1369, L .Ed.2d (2004) . KRE 804(x)(5) provides that a witness is unavailable for purposes of admission of former testimony, KRE 804(b)(1), if the witness " s absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance by process or other reasonable means." When the right of confrontation is implicated, there is an additional requirement that the proponent of the witness have made a good faith effort to obtain the witness's presence at trial. Barber, supra , at 725,
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