edy 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317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942), Short v. Commonwealth, Ky., 519 S.W.2d 828, 832-33 (1975), superseded by rule as stated in Jackson v. Commonwealth, Ky., 113 S.W.3d 128, 131-32 (2003); right to counsel, Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525,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.
The trial judge offered to have both appellants brought up from the jail to attend the January 27, 2000, hearing. However, the attorneys for both appellants expressly waived their respective clients' presence at that hearing. Fugate v. Commonwealth, Ky., 62 S.W.3d 15, 18-19 (2001). Furthermore, nothing that occurred at that hearing could be characterized as a "critical stage of the trial."
Moreover, a "minority opinion has no binding precedential value . . . [and] if a majority of the court agreed on a decision in the case, but less than a majority could agree on the reasoning for that decision, the decision has no stare decisis effect." Hudson v. Commonwealth, 202 S.W.3d 17, 21-22 (Ky. 2006), citing Fugate v. Commonwealth, 62 S.W.3d 15, 19 (Ky. 2001). Recently, in Bailey v. Bertram, 2010 WL 1641115 (Ky. 2010)(2009-SC-000210-MR), the Kentucky Supreme Court called into question the precedential value of J.N.R. v. O'Reilly. Since only one other justice joined in Justice Minton's primary opinion, the Court suggested that the opinion in J.N.R. is not entitled to stare decisis effect.
This rule precludes reliance upon an unofficial video of trial proceedings on an appeal from a conviction. See, e.g., Fugate v. Commonwealth, 62 S.W.3d 15, 21 (Ky. 2001). Prior to a 2011 amendment the pertinent language read: "Official Record.
The parties do not dispute that the medical examiner's cross-examination was a critical stage of the trial. While acknowledging, citing Fugate v. Commonwealth, 62 S.W.3d 15, 19 (Ky. 2001), that even the most basic rights of criminal defendants, including the right to be present at a critical stage of trial, are subject to waiver, Porter cites Powell v. Commonwealth, 346 S.W.2d 731, 734 (Ky. 1961), for the premise that the "waiver should be so clear and unequivocal as to indicate a conscious intent." Porter contends that the fact she waived her presence for that portion of the direct examination is insufficient, as a matter of law, to constitute a waiver of her presence during her counsel's cross-examination of the medical examiner and that the record does not adequately establish that she intended to do so for that portion of the witness's testimony.
See Scott v. Commonwealth, 616 S.W.2d 39, 42 (Ky.1981) (trial court did not abuse its discretion starting trial in the defendant's absence after accepting waiver of his right to be present during the proceedings given high probability defendant would be disruptive); Richmond v. Commonwealth, 637 S.W.2d 642, 647 (Ky.1982) (attorney was permitted to waive a defendant's right to attend a pretrial deposition which would be used as testimony against him at trial). In Fugate v. Commonwealth, 62 S.W.3d 15, 19 (Ky.2001), this Court held that counsel was permitted to waive the defendant's presence at a competency hearing. The Fugate Court noted that Dean, as a plurality opinion of this Court, has limited precedential value.Id. at 19, citing Ware v. Commonwealth, 47 S.W.3d 333, 335 (2001).
"The right to be present at every critical stage of the trial protects a defendant against purposeful or involuntary exclusion but not voluntary exclusion." Fugate v. Commonwealth, 62 S.W.3d 15, 19 (Ky. 2001) (citations and alterations omitted). Thus, if Appellant voluntarily excluded himself, he would have no recourse here.
RCr 8.28(1). Subsection 1 of the rule is therefore in line with this Court's recognition that a defendant may validly waive his right to be present at the proceedings against him. Fugate v. Commonwealth, 62 S.W.3d 15, 19 (Ky. 2001). See also McKinney v. Commonwealth, 474 S.W.2d 384 (Ky. 1971) (finding no due process violation where defendant was tried in absentia, as defendant voluntarily remained absent from the trial).
"[A] minority opinion has no binding precedential value . . . [and] if a majority of the court agreed on a decision in the case, but less than a majority could agree on the reasoning for that decision, the decision has no stare decisis effect." Fugate v. Commonwealth, 62 S.W.3d 15, 19 (Ky. 2001) (quoting Ware v. Commonwealth, 47 S.W.3d 333, 335 (Ky. 2001)). Three justices concurred in the opinion, and two justices concurred in result only.
Our review of the record indicates that the decision of the trial judge was supported by substantial evidence and was not clearly erroneous. See Fugate v. Commonwealth, 62 S.W.3d 15 (Ky. 2001). II. Medication Hearing