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Commonwealth v. Parson6/17/2004
n other grounds by Pendleton v. Commonwealth , Ky., 685 S.W.2d 549, 552 (1985). Here, Appellant would accomplish what he otherwise could not have accomplished were he permitted to agree to a deposition, RCr 7 .10(3), then welsh on the agreement after the deposition was concluded and thereby obtain discovery of the nature of the witness's testimony. Obviously, the decision to make the belated objection was premeditated because defense counsel came to the deposition armed with the subpoena that he withheld until learning what the testimony would be. We will not speculate as to whether Appellant's purpose was to obtain discovery by subterfuge, to deprive the Commonwealth of Nichol's testimony at trial, or to obtain yet another continuance. Regardless, the Commonwealth acted in detrimental reliance on the agreement by (1) agreeing to a trial date on which a key witness could not be present, and (2) making a key witness available for a deposition that otherwise could not have been obtained . We conclude that principles of estoppel and fundamental fairness preclude Appellant from claiming a denial of his right of confrontation under these circumstances.
Furthermore, because the deposition was videotaped in the courtroom with the witness in the witness box, the jury was able to "weigh the demeanor of the witness" in a courtroom setting . Barber v. Page , supra, at 725, 88 S .Ct. at 1322 . Nor was Appellant denied the right of cross-examination or the right to "meet the witness face to face." Ky. Const. § 11 . A judge presided over the testimony just as would have occurred at trial. Thus, we conclude that even if there had been error, it would have been harmless beyond a reasonable doubt. Chapman v. California , 386 U .S . 18, 22, 87 S.Ct . 824, 827, 17 L .Ed.2d 705 (1967) (even constitutional errors are subject to harmless error analysis). Of course, even if an error had occurred, it would only affect the conviction and sentence for assault 2nd since Nichol's testimony addressed only the serious physical injury element of that offense .
V. SERIOUS PHYSICAL INJURY.
One of the elements that distinguishes the Class C felony of assault 2nd (wanton), KRS 508.020(1)(c), from the Class A misdemeanor of assault in the fourth degree (wanton) ("assault 4th"), KRS 508.030(1)(a), is whether the injury sustained by the victim was a "physical injury" or a "serious physical injury." Those terms are defined as follows in KRS 500 .080 :
(13) "Physical injury" means substantial physical pain or any impairment of physical condition;
...
(15) "Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonqed impairment of health, or prolonged loss or impairment of the function of any bodily organ .
(Emphasis added .) The trial judge instructed the jury on both assault 2nd and assault 4th as lesser included offenses of the indicted offense of assault in the first degree. Appellant claims it was error to instruct on assault 2nd because the evidence was insufficient to support a finding by the jury that the victim, Lisa Eberle, sustained a serious physical injury.
Following the collision, Eberle was transported by ambulance to University Hospital where she was diagnosed with multiple contusions and strains, a laceration of the elbow which was sutured, and a cervical strain, described by Dr. Latino, the emergency room physician, as a stretching of the ligaments and muscles of the neck. She was discharged and referred to her family physician, Dr. Lynn Riley. Dr. Riley referred Eberle to Nichol for physical therapy. Nichol diagnosed headaches, cervical neck pa
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