Commonwealth v. Parson6/17/2004
88 S .Ct. at 1322. Contrary to the prosecutor's assertion at the December 20, 2001, hearing, the mere absence of the witness from the jurisdiction does not constitute "unavailability," and RCr 7 .10(1) cannot be so interpreted . Brumley v. Wingard , 269 F.3d 629, 640 (6th Cir. 2001) (construing Ohio Crim. R. 15(F), a rule almost identical to RCr 7 .10). Obviously, Nichol was not "unavailable" in the constitutional sense.
However, even "the most basic rights of criminal defendants are subject to waiver." New York v. Hill , 528 U.S . 110, 114,120 S.Ct. 659, 663,145 L .Ed .2d 560 (2000) (internal quote omitted). Esc .., right to a speedy trial, Barker v. Wingo , 407 U.S . 514, 529, 92 S .Ct. 2182, 2191, 33 L . Ed. 2d 101 (1972), Dunaway v. Commonwealth , Ky., 60 S .W.3d 563, 571 (2001) ; right to a public trial, Levine v. United States, 362 U .S. 610, 619, 80 S .Ct. 1038, 1044, 4 L .Ed .2d 989 (1960); right to a trial by jury, Adams v. United States ex rel . McCann , 317 U .S . 269, 275, 63 S .Ct. 236, 240, 87 L.Ed. 268 (1942), Short v. Commonwealth , Ky., 519 S .W .2d 828, 832-33 (1975), superseded by rule as stated in Jackson v. Commonwealth , Ky., 113 S .W.3d 128, 131-32 (2003); right to counsel, Faretta v. California , 422 U .S . 806, 819, 95 S .Ct. 2525, 2533, 45 L .Ed .2d 562 (1975), Wake v. Barker, Ky., 514 S .W .2d 692, 695-96 (1974) ; right to testify on one's own behalf, Rock v. Arkansas, 483 U .S . 44, 52, 107 S.Ct. 2704, 2709, 97 L.Ed .2d 37 (1987), Crawley v. Commonwealth , Ky., 107 S .W .3d 197, 199 (2003); right to be present at all stages of trial, United States v. Gagnon , 470 U .S. 522, 528, 105 S.Ct. 1482, 1485, 84 L.Ed .2d 486 (1985), Fugate v. Commonwealth , Ky., 62 S.W.3d 15, 19 (2001) ; right to appeal, Johnson v. Commonwealth , Ky., 120 S .W.3d 704, 706 (2003).
Likewise, a criminal defendant may waive the constitutional right of confrontation. Illinois v. Allen , 397 U .S. 337, 342-43, 90 S.Ct. 1057,1060-61, 25 L .Ed .2d 353 (1970); Richmond v. Commonwealth , Ky., 637 S.W.2d 642, 646 (1982) ; Bonar v. Commonwealth, 180 Ky. 338, 202 S.W . 676, 679 (1918). Appellant clearly waived his right to confront Nichol at trial when defense counsel, with Appellant's acquiescence, agreed that the testimony of medical witnesses could be presented by deposition. Richmond, supra, at 644 (waiver by counsel : "[The defendant] could have been [present] if his attorney had so chosen ."). Federal courts have uniformly held that counsel can waive a criminal defendant's Sixth Amendment right of Confrontation "so long as the defendant does not dissent from his attorney's decision, and so long as it can be said that the attorney's decision was a legitimate trial tactic or part of a prudent trial strategy." United States v. Reveles, 190 F.3d 678, 683 n .6 (5th Cir. 1999) (quoting United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980)) . See also United States v. Cooper, 243 F.3d 411, 418 (7th Cir. 2001) (same); United States v. Plitman , 194 F.3d 59, 64 (2d Cir. 1999) (" e reject argument that a defendant in every instance personally must waive the right to confront the witnesses against him ."); Hawkins v. Hanniqan, 185 F .3d 1146, 1155 (10th Cir. 1999) (upholding evidentiary stipulation against Sixth Amendment challenge because "there is no evidence that [defendant] disagreed with or objected to his counsel's decision") ; Wilson v. Gray, 345 F.2d 282, 286 (9th Cir. 1965) (" he accused may waive his right to cross examination and confrontation and . . . the waiver of this right may be accomplished by the accused's counsel as a matter of trial tactics or strategy."); Cruzado v. Puerto Rico, 210 F.2d 789, 791 (1 st Cir. 1954) (" here an accused is represented by counsel, we do not see why counse
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