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Commonwealth v. Parson6/17/2004
l, in his presence and on his behalf, may not make an effective waiver of [the right of confrontation] .") . Here, defense counsel agreed to the deposition either in exchange for a continuance or, as noted infra, for the purpose of obtaining pretrial discovery to which he otherwise was not entitled . Appellant was present and did not dissent from the waiver. The only remaining issue is whether Appellant could renege on his waiver after Nichol's deposition was completed .
Application of the contractual principle of estoppel has been applied to agreements between prosecutor and defendant in a criminal case.
It seems obvious that if the state makes a promise to an accused and the accused takes no action in reliance on the promise, the state may withdraw the offer. No agreement has been reached. There is nothing to enforce. The prosecutor's right to withdraw is equal to his right to withhold an offer.
...
However, if the offer is made by the prosecution and accepted by the accused, either by entering a plea or by taking action to his detriment in reliance on the offer, then the agreement becomes binding and enforceable .
Commonwealth v. Reyes , Ky., 764 S.W .2d 62, 64-65 (1989) (emphasis added) (quotation omitted).
When, however, the defendant detrimentally relies on the govemment's promise, the resulting harm from this induced reliance implicates due process guarantees. This basic estoppel principle was recognized by the Court in Santobello [Santobello v. New York, 404 U .S. 257, 92 S .Ct. 495, 30 L.Ed .2d 427 (1971)]; when a defendant pleads guilty in reliance on an agreement with the prosecutor, that promise must be fulfilled . Santobello arguably could be extended to cover the situation where the defendant has not yet entered the plea, but has relied on the bargain in such a way that a fair trial would no longer be possible .
Gov't Virgin Islands v. Scotland , 614 F.2d 360, 365 (3rd Cir. 1980).
These cases, of course, involved situations where the government sought to welsh on its agreement after a criminal defendant had acted in detrimental reliance thereon, thus implicating due process considerations . Nevertheless, we have held that a criminal defendant may not obtain a tactical advantage by claiming lack of confrontation after his attorney initially attended a witness's court-ordered deposition but voluntarily departed prior to its conclusion . Carter v. Commonwealth , Ky., 782 S.W .2d 597, 599-600 (1989), overruled on other grounds by Norton v. Commonwealth , Ky., 37 S.W .3d 750, 753 (2001), habeas granted on other grounds by Carter v. Sowders, supra , note 2 (defendant did not personally attend deposition and evidence did not prove he had actual notice thereof, thus he could not be deemed to have waived confrontation) . See also Estep , 957 S.W.2d at 193 (defendant could not complain on appeal of use of videotaped deposition where she agreed prior to trial that expert's deposition could be used as evidence). Cf. People v. Couch, 56 Cal.Rptr.2d 220, 221-22 (Cal. Ct. App. 1996) (defendant estopped from challenging on appeal sentence to which he had agreed in plea bargain) ; State v. Crosby, 338 So.2d 584, 593 (La. 1976) (defendants' agreement to concede venue in exchange for prosecutor's agreement not to exhibit admissible and relevant, but gruesome, photographs necessary to prove venue, precluded defendants from claiming on appeal that trial court forced them to stipulate venue) .
There is no provision in our criminal rules that would have allowed Appellant to take a discovery deposition of a witness for the Commonwealth . Rigsby v. Commonwealth , Ky., 495 S .W .2d 795, 798 (1973), overruled o
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