dissenting.
Respectfully, I dissent from the final portion of the Majority Opinion, which states as follows:
“In the event that the parties cannot agree as to the summaries of the evidence referred to above, [‘should both sides agree, each could read a concise summary of the evidence which it offered and which was admitted at the guilt phase of the earlier trial’], then each could submit its proposed summary to the opposing party and the court, who could then determine what the summaries would contain after hearing any objections and argument from the opposing party.”
This Court should not countenance, let alone create, a procedure which contemplates using as the trial judge’s “summaries of the evidence,” his memory and opinion as to what was the evidence at a former trial as evidence in a new trial for two reasons:
First of all, it is rank hearsay; violation of a concept so fundamental it should need no amplification:
“[I]n the 19th century, the so-called hearsay rule became one of the dominant rules of the law of evidence.... one simple, if utopian, idea, ... juries should not hear secondhand evidence; they should hear Smith’s story out of his own mouth, and not Jones’s account of what Smith had to say.” Prof. Lawrence M. Friedman, “A History of American Law,” 2d ed., p. 153 (1985).
As I stated in my Dissenting Opinion in Hall v. Commonwealth, Ky., 817 S.W.2d 228 (1991) 1
“In Kentucky, the penalty phase of a criminal trial is now, as it always has been, as much a part of a criminal trial as the guilt phase. I am shocked to learn inadmissible evidence is appropriate to prove anything in a jury trial. Nor do I believe the General Assembly contemplated that the word ‘evidence’ in KRS 532.055(2)(a) (where the statute states that certain specified ‘[ejvidence may be offered by the Commonwealth relevant to sentencing’), would or could mean anything less than evidence competent under the rules of evidence.” Second, permitting the use of court sum-
maries of the evidence as evidence cannot fairly be considered as simply construing or interpreting the Truth-In-Sentencing statute; it is, in a word, supplementing the statute. To supplement the statute violates basic principles on separation of powers mandated by the Kentucky Constitution, Secs. 27 and 28. As stated in Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248, 251 (1960):
“[C]ourts are not at liberty to supply words or insert something or make additions [to statutes] which amount, as sometimes stated, to providing for a ca-sus omissus, or cure an omission, however just or desirable it might [seem to] be to supply an omitted provision.”
In the first appeal of this same case, Boone v. Commonwealth, Ky., 780 S.W.2d 615 (1989), our Court erroneously added to the Truth-In-Sentencing statute by judicial fiat. Now we are repeating the same kind of error, for a second time in the same *816case, once again trying to patch up an unworkable statute.
In the first appeal we recognized that the statute in question was fundamentally unfair because it permitted the Commonwealth to introduce evidence regarding “minimum parole eligibility,” but not the defendant. We stated:
“[T]o place the sole control of said evidence in the Commonwealth is a denial of due process under the 6th and 14th Amendments of the Constitution of the United States and § 11 of the Kentucky Constitution.” Id. at 616.
Then, instead of striking down what was unconstitutional, we supplemented the statute stating:
“If ‘Truth-in-Sentencing’ is the objective sought by KRS 532.055, then either the defendant or the Commonwealth should be permitted to introduce evidence of minimum parole eligibility, and we so hold.” Id. at 616.
I dissented in the first Boone appeal, not because I disagreed that the statute as enacted was fundamentally unfair and a violation of due process under both the United States and Kentucky Constitutions, but because the obvious unconstitutionality of the statute as written was reason to declare the statute unconstitutional. But such reason gave us no license to patch it up.
In my Dissent in the first Boone appeal, referring to our series of ill-considered opinions salvaging the Truth-In-Sentencing procedure, I stated:
“This is Chapter IV in a book with an unhappy ending. In it we tear up the fabric of the judicial rulemaking process. Chapter I was Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987); Chapter II, Huff v. Commonwealth, Ky., 763 S.W.2d 106 (1989); and Chapter III, Commonwealth v. Hubbard, Ky., 777 S.W.2d 882 (1989).” Id. at 617.
Now we have written Chapter V.
In Chapter V we write a statute authorizing the use of hearsay, the trial court’s “summaries of the evidence” from a prior trial, as sentencing evidence in Boone’s retrial. There is simply no exception to the hearsay rule permitting the judge to state as evidence his opinion as to what was said at the previous trial, for the jury to use as evidence at the retrial. The statute enacted by the General Assembly did not include such a procedure; indeed, had it done so, hopefully we would recognize a violation of the constitutional limitation on making legislative exceptions to the hearsay rule, violations of the defendant’s right “to meet the witnesses face-to-face.” Ky.Const., § 11; Drumm v. Commonwealth, Ky., 783 S.W.2d 380 (1990). By our supplementation of the Truth-in-Sentencing statute in this case, we have committed the same violation of the defendant’s basic constitutional right which we denied the General Assembly in the Drumm case.
Hearsay is hearsay, whether authorized by the act of the General Assembly or by the Supreme Court of Kentucky.
As I stated in dissent in Hall v. Commonwealth, supra:
“The bottom line in the Majority Opinion is that we need not be concerned whether evidence offered by the Commonwealth in the penalty phase of a criminal case qualifies as competent under the rules of evidence. We seem to grow increasingly impatient with any obstacle to extracting the maximum sentence from the jury.”
The problem here is far more serious than the one presented in Hall v. Commonwealth.
STEPHENS, C.J., concurs in the portion of this dissenting opinion that addresses violation of the hearsay rule.
. Joined by two other members of this Court, Chief Justice Stephens and Justice Combs.