Concurring in Part and Dissenting in Part.
I vote to reverse Appellant’s Murder conviction and to remand the indictment to the trial court for a new trial at which Appellant would face a maximum term of life imprisonment. Specifically, I write separately as to Parts 111(D)(4) and 111(F)(4) of the Opinion of the Court and I would hold that the trial court committed reversible error by (1) permitting the Commonwealth to introduce Ms. Van Zandt’s videotaped deposition without a constitutionally-adequate showing that Ms. Van Zandt was unavailable to testify in person, and (2) failing to grant a directed verdict in Appellant’s favor as to the KRS 532.025(2)(a)(l) aggravating circumstance during the capital sentencing phase. Although I disagree with the basis identified in the Opinion of the Court for its reversal of Appellant’s death sentence, I concur in the decision to reverse Appellant’s sentence, but dissent to the extent that the Opinion of the Court affirms Appellant’s Murder conviction itself and remands the case for the trial court to conduct a new capital sentencing phase. My resolution of *576the aggravating circumstance issue renders moot the other capital sentencing phase errors — including the trial court’s failure to instruct the jury upon life without possibility of probation or parole (“LWOP”) as an authorized punishment. Accordingly, while I agree with the bottom-line conclusion that, in capital cases involving conduct committed prior to July 15, 1998, a trial court must instruct a jury that LWOP is an authorized punishment if defendant so consents, that holding is not relevant to my analysis because I would hold that, if found guilty of Murder upon remand, Appellant cannot receive a sentence greater than life imprisonment.
Just over two (2) years ago, in Marshall v. Commonwealth,1 this Court unanimously stated that “[a] trial court cannot merely rely on the Commonwealth’s assurances of unavailability in deciding to admit hearsay evidence that is conditioned upon unavailability.” 2 Given that there is absolutely nothing in the record of this case to demonstrate Ms. Van Zandt’s unavailability other than the Commonwealth’s representation that Ms. Van Zandt’s pregnancy prevented her from traveling to Kentucky, today’s opinion’s holding that “the trial court did not abuse its discretion in finding Ms. Van Zandt unavailable on the basis of the Commonwealth’s assurances”3 represents a full-scale retreat from Marshall. I believe the Court was correct in Marshall, and the trial court’s finding of unavailability in this case was clearly erroneous.
The Commonwealth had the burden to prove that Ms. Van Zandt was “unavailable” in the constitutional sense by demonstrating its inability to procure her attendance at trial by process or other reasonable means.4 The record reflects that the Commonwealth utterly failed to meet its burden. The easiest way to illustrate the Commonwealth’s failure to satisfy its burden of proof is to compare the record in this case with the record in Brooks v. Commonwealth,5 the most recent published case in which this Court has addressed an allegation of error relating to former testimony introduced because of a witness’s unavailability. In Brooks, the Commonwealth sought to introduce a witness’s former testimony pursuant to KRE 804(b)(1) because the witness, who was incarcerated in a Kentucky prison, had recently attempted to commit suicide. The trial judge granted the Commonwealth’s motion to introduce the former testimony after finding that the witness was unavailable to testify at trial. In doing so, the trial court relied upon (1) the prosecutor’s oral and written representations that it had been informed by the Kentucky Department of Corrections that the witness “had attempted suicide and would not be available to testify at trial”; 6 (2) a sworn affidavit from the prosecutor that contained the same information and included contact information for the persons with whom he had spoken at the Kentucky Correctional Insti*577tute for Women;7 and (3) the trial judge’s own personal investigation in the form of a phone call to correctional facility personnel who verified the witness’s suicide attempt and informed the trial judge that to transport the witness for trial would be contrary to medical advice.8 Given the state of that record, I agreed with the majority’s conclusion that the trial court properly allowed the Commonwealth to introduce the unavailable witness’s former testimony.9 In the case at bar, however, the record contains nothing more than the Commonwealth’s oral representation that Ms. Van Zandt could not travel to Kentucky for trial. The “doctor’s note,” which was allegedly in the Commonwealth’s possession, was not made a part of the record. Nor did the Commonwealth ask any questions of Ms. Van Zandt during the taking of the videotaped deposition that would provide evidence for its claims regarding her inability to travel. Because “[a]n inspection of the record reveals that the Commonwealth provided virtually no information to the trial court — let alone ‘substantial evidence that would support the trial court’s finding’10 — the trial court’s unavailability finding was unsupported by substantial evidence and thus clearly erroneous. In light of the materiality of Ms. Van Zandt’s testimony, which the Commonwealth introduced in order to connect Appellant to property found in Kentucky in order to shed doubt upon his alibi defense, the admission of this evidence without a sufficient showing of unavailability entitles Appellant to a new trial.11
In my view, the trial court further erred when it denied Appellant’s motion for a directed verdict as to the KRS 532.025(2)(a)(l) aggravating circumstance. Accordingly, I would hold that, if Appellant were to be found guilty upon remand for a new trial (or upon remand for a new sentencing proceeding, as ordered by the majority opinion), he should receive a sentence of imprisonment of between twenty (20) to fifty (50) years or life. In Thompson v. Commonwealth,12 this Court correctly interpreted KRS 532.025(2)(a)(l)’s “prior record of conviction for a capital offense” to mean & final judgment of conviction for a capital offense. By overruling Thompson and adopting a contrary and novel interpretation of the same language, today’s opinion not only is inconsistent with Appellant’s rights of due process13 but also turns its back on common sense and its own rules of statutory construction. *578The Opinion of the Court concedes that the term “conviction” is inherently ambiguous and is susceptible to different interpretations, but then fads to apply the “rule of lenity” that “require[s] us to give it the more lenient interpretation”14 when faced with such ambiguity. The opinion correctly observes that KRS 446.080(4) states that “[a]ll words and phrases shall be construed according to the common and approved usage of language!).]”15 However, the statute continues further, “but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law shall be construed according to such meaning.”16 And, although the popular meaning of “conviction” may apply where rights of persons other than the “convict” are involved, in situations “where legal disabilities, disqualifications, and forfeitures are to follow, the strict legal meaning is to be applied, absent some indication of contrary intent.”17 In Melson v. Commonwealth,18 this Court adhered to this principle when it interpreted KRS 532.080(2)’s “having been convicted of one (1) previous felony” language to require a final judgment of conviction.19 Today’s Opinion of the Court interprets KRS 532.025(2)(a)(l)’s “prior record of conviction for a capital offense” language in a manner inconsistent with the technical meaning of “conviction” and thereby creates an anomaly of epic proportions where a non-final capital “conviction” would be insufficient to trigger PFO enhancement, but sufficient to render a defendant death-eligible. “The death penalty cannot be imposed simply because we or the jury believe the actions or motives of a particular defendant are deserving of capital punishment!),]”20 and this Court must interpret the scope of KRS 532.025(2)(a)’s aggravating circumstance in the same manner that it interprets any legislative enactment — ie., by applying the rules of statutory construction. A proper application of those rules demonstrates that the Commonwealth was unable to prove that Brady’s murder “was committed by a person with a prior record of conviction for a capital offense.” Accordingly, the trial court should have directed a verdict in Appellant’s favor and instructed the jury to fix Appellant’s punishment at a sentence of imprisonment between twenty (20) years to fifty (50) years or life.
Given that a majority of the Court disagrees with my analysis and has voted to remand this case for the trial court to conduct a new capital sentencing phase, I must also express my disagreement with the majority opinion’s Part 111(C)(3) analysis of Appellant’s contention that the trial court unconstitutionally limited the scope of Appellant’s individual voir dire. For reasons that I have explained on prior occasions,21 I would hold that the trial *579court erroneously restricted Appellant’s ability to assess jurors’ ability to consider the full range of penalties when it prevented Appellant’s trial attorneys from inquiring whether jurors could consider the minimum penalty of twenty (20) years. In my view, the trial court should avoid repetition of this error upon remand.
JOHNSTONE, J., joins in part as to Van Zandt testimony.
STUMBO, J., joins.. Ky., 60 S.W.3d 513 (2001).
. Id. at 519.
. St. Clair v. Commonwealth, 140 S.W.3d 510, 540, 2004 WL 314613 (2004) (citing Ruppee v. Commonwealth, Ky., 821 S.W.2d 484, 486 (1991); Bruce v. Commonwealth, Ky., 441 S.W.2d 435, 437 (1969)).
. Ohio v. Roberts, 448 U.S. 56, 74-75, 100 S.Ct. 2531, 65 L.Ed.2d 597, 613 (1980) (“The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to ... present that witness. As with other evidentiary proponents, the prosecution bears the burden of establishing this predicate.”).
. Ky., 114 S.W.3d 818 (2003).
. Id. at 821.
. Id.
. Id.
. Brooks, 114 S.W.3d at 826 (Keller, J., dissenting) ("Because substantial evidence supports the trial court’s determination that Mary Wood (‘Wood’) was unavailable to testify at Appellant’s third trial, I agree with the majority’s conclusion that the trial court properly allowed the Commonwealth to introduce Wood's videotaped prior sworn testimony.”).
. Lovett v. Commonwealth, Ky., 103 S.W.3d 72, 85 (2003) (Keller, J., dissenting).
. My conclusion that Ms. Van Zandt’s videotaped testimony should never have been introduced at Appellant’s trial renders moot Appellant’s other allegations of error concerning Ms. Van Zandt’s testimony. I wish to express my view, however, that the Commonwealth’s failure to advise the defense prior to the taking of the videotaped deposition that Ms. Van Zandt had informed two (2) of the prosecuting attorneys that the items of clothing recovered from Brady’s truck were not the clothes that she had brought to Appellant in Dallas, Texas, constituted a shocking breach of the Commonwealth's discovery obligations that was anathema to Appellant’s rights of due process.
. Ky., 862 S.W.2d 871 (1993).
. See Gall v. Parker, 231 F.3d 265, 305 (6th Cir.2000) ("If the new interpretation was ... unforeseeable, if it was applied to events occurring before its enactment, and if the interpretation disadvantages the offender affected by it, then ... due process is violated just as the ex post facto clause would be.”); Tharp v. Commonwealth, Ky., 40 S.W.3d 356, 362-63 *578(2000) (" '[D]ue process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.’ ”) (quoting United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997)).
. Young v. Commonwealth, Ky., 50 S.W.3d 148, 162 n. 23 (2001) (referencing the rule of lenity in the context of interpreting the KRS 532.025(2)(a)(4) aggravating circumstance).
. KRS 446.080(4).
.Id.
. 21A AM. JUR. 2D Criminal Law § 1313 at 571-72 (1998).
. Ky., 772 S.W.2d 631 (1989).
. Id. at 633.
. Young, 50 S.W.3d at 161.
. See Caudill v. Commonwealth, Ky., 120 S.W.3d 635, 680-81 (2003) (Keller, J., concurring); Furnish v. Commonwealth, Ky.; 95 S.W.3d 34, 54-57 (2002) (Keller, J., concurring in part and dissenting in part), cert. denied - U.S. -, 124 S.Ct. 115, 157 L.Ed.2d *57980 (2003); Stopherv. Commonwealth, Ky., 57 S.W.3d 787, 808-812 (2001) (Keller, J., dissenting), cert. denied, 535 U.S. 1059, 122 S.Ct. 1921, 152 L.Ed.2d 829 (2002).