concurring in part and dissenting in part.
I concur with the affirmance of the conviction of Meeks. However, I dissent from the affirmance of the conviction of Peak and would remand his case for a new trial because of a clear violation of the rule announced in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
No doubt, this was a difficult case to try. There were three defendants, all indicted for the capital murder and robbery of an unknown drug dealer whose decomposed remains were found wrapped in a blanket and dumped in a run-off ditch. One defendant, Bearden, had an agreement with the Commonwealth that if she testified truthfully, the death penalty would be “taken off the table” as to her. Another defendant, Meeks, had given an audiotaped post-arrest statement to the police that incriminated both him and Peak (but mostly Peak). Both Meeks and Peak indicated them intent to exercise their respective Fifth Amendment rights not to testify. Thus, because Meeks could not be cross-examined by Peak, the Commonwealth could not introduce those portions of Meeks’s statement that inculpated Peak. Lilly v. Virginia, 527 U.S. 116, 137-38, 119 S.Ct. 1887, 1900-01, 144 L.Ed.2d 117 (1999); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
As is often the case, Meeks’s statement minimized his own role in the murder and robbery while pointing the finger at Peak as both the planner and the triggerman. No physical evidence connected Peak to the murder and robbery, so the primary evidence against him would be the testimo*550ny of Bearden, an admitted heroin and cocaine addict. In a pretrial ruling, the trial court correctly held that the Commonwealth could not introduce Meeks’s unredacted statement. However, the Commonwealth’s attempt to produce a redacted version, completed only after several weeks of trial, made it appear as if Meeks had confessed to being the trigger-man. At this point, Meeks advised the court that he would waive his- Fifth Amendment right not to testify so that the Commonwealth would not read the redacted version of his statement. However, instead of calling the now-available Meeks to the stand and thereby subjecting him to cross-examination by Peak (and running the risk that Meeks might change his story), the Commonwealth simply played the unredacted audiotape of Meeks’s statement to the jury. Compounding the error, the jury was allowed to hear the audiotape again during its guilt-phase deliberations.
In Crawford, the United States Supreme Court held that “[wjhere testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68, 124 S.Ct. at 1374 (emphasis added). The Commonwealth does not assert that Meeks’s statement was not testimonial in nature. “Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68, 124 S.Ct. at 1374 (emphasis added). In fact, the statement that required reversal in Crawford was also the product of a police interrogation. Meeks’s statement violated both aspects of the holding in Crawford. Peak did not have a prior opportunity to cross-examine Meeks, and Meeks was not unavailable. “Even where the defendant had such an opportunity [to cross-examine], we excluded the testimony where the government had not established unavailability of the witness.” Id. at 57, 124 S.Ct. at 1367-68.
The majority opinion suggests that Peak could have cured the error by calling Meeks as a witness during his case-in-chief and asking him about the statement. Of course, it is not the obligation of a criminal defendant to cure a trial court error. Furthermore, Peak’s case-in-chief would have been days later, and to call Meeks to the stand for the purpose of examining him about his statement would simply have reminded the jury of those statements that inculpated Peak. Lastly, if Peak had called Meeks as his witness, it would have been on direct examination, and he could not have exercised that primary advantage of cross-examination, i.e., the right to ask leading questions. KRE 611(c). Instead, when the Commonwealth simply played the audiotape of Meeks’s unredacted statements, Peak , could not cross-examine Meeks at the time of its introduction because Meeks was not on the witness stand. The audiotaped statement was introduced during the testimony of a police officer.
The majority opinion seeks solace from a statement taken out of context from a footnote in Crawford, ante, at 544, viz:
The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.
Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. at 1369 n. 9. At that point in the opinion, Justice Scalia was responding to concerns expressed in Chief Justice Rehnquist’s dissenting opinion that the reliability of some out-of-court statements “cannot be replicated even if the declarant testifies to the same matters in court.” Id. (emphasis added). Obviously, both Justice Scalia and Chief Justice Rehnquist were assuming that the declarant would testify, but the *551Chief Justice believed that the prior statement might be more reliable than the in-court testimony. Immediately prior to this discussion, footnote 9 also states:
Finally, we reiterate that, when the de-clarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).
Id. The issue in Green was whether a testifying witness’s prior inconsistent statement could be introduced during the witness’s own testimony. The Court held that the statement was admissible under those circumstances. However, the Court also had some cogent things to say about the right of Confrontation:
Our own decisions seem to have recognized at an early date that it 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:
“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895).
Viewed historically, then, there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.
This conclusion is supported by comparing the purposes of confrontation with the alleged dangers in admitting an out-of-court statement. Confrontation: (1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the “greatest legal engine ever invented for the discovery of truth” [citing 5 Wigmore § 1367]; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.
California v. Green, 399 U.S. 149, 157-158, 90 S.Ct. 1930, 1934-35, 26 L.Ed.2d 489 (1970) (emphasis added) (footnote omitted).
Accordingly, I dissent from the affir-mance of Peak’s conviction and would remand his case for a new trial. I also believe it was unnecessary for the Commonwealth to introduce the putrid death wrappings in which the victim’s body had decomposed. While this evidence was being displayed to the jury, an assistant to the prosecutor can be seen spraying the object with a deodorizer; an assistant to counsel for Meeks can be seen holding her nose; and unidentified persons can be heard gagging in the background. However, because no specific objection was registered to the display of this evidence, I would not reverse on that ground.
LAMBERT, C.J.; and SCOTT, J„ join.